Constitutional Vanguard: An Analysis of the Supreme Court’s Decisions on Biden’s Vaccine Mandates
The long-promised post is up. If you want to understand these decisions better, without wading through all the legalese, this is the way to do it.
I listened to the oral arguments and found the behavior of the lefty justices to fall short of the judicial ideal. Justice Sotomayor’s blatant misstatements of fact when it came to the effect of the pandemic on children seemed to exemplify a sort of tribalism that increasingly seems to characterize the left side of the Court, which is far more predictable than the right side in terms of outcome.
Second, regular readers know that I am a judicial conservative, and generally find myself in agreement with the likes of Scalia and Thomas — or, these days, Thomas, Alito, and Gorsuch.
But if you know me well, you also know that I call them as I see them. I’m not much of a “team player” when it comes to expressing my opinions on politics or the law, because being a member of a team would require me sometimes to shy away from speaking the full truth on an issue, as I see it. I prefer to say what I think even if it upsets members of my “team.” I do this enough that it no longer really feels like I even have a team. (Other than you subscribers, of course!)
And here, speaking the full truth requires me to reveal something that surprised me: when I read the vaccine mandate decisions, I found that as a matter of pure logic, the folks in dissent on the case involving the OSHA mandate seem to have the better of the argument.
I wrote this one for the paid subscribers, an elite group you can easily join by clicking here.
How about we go with the fact that federal medical mandates aren’t allowed under Article 1 Section 8 of the enumerated powers of the federal government, the 16th amendment, the 10th amendment, or the whole Constitution?
For that matter there is a lot that the federal government does that isn’t a federal power. The Department of Education for instance.
Instead of stare decisis, international law, and personal opinion the Supreme Court justices should use the plain reading of the US Constitution.
I may be a little bit of a grumpy old man shaking his fist at the sky this morning.
Tanny O'Haley (8a06bc) — 1/24/2022 @ 10:09 amWhile fires and rusty pipes may occur both in the workplace and outside, they are amenable to inspection and correction in the workplace. They arise from different and identifiable causes in each place. They are not in any way global conditions like, say, traffic or smog. Or pandemics.
Could OSHA make a rule that workplaces must provide local accommodations for workers who travel more than an hour to their job? Could OSHA limit the activities of a business in an area subject to smog?
These questions, like the Covid one, are different in kind, not just degree, from “can OSHA ban the storage of oily rags next to the furnace?” Even when a danger is universal and unavoidable (e.g. gravity), OSHA is limited to specific requirements (e.g. railings) tailored to the workplace; it cannot make [even sensible] regulations about dealing with the danger other places. At best, it can make products (e.g. ladders) that have dual-use carry warnings and suggestions; full regulation remains a workplace issue.
Kevin M (ab1c11) — 1/24/2022 @ 10:43 amI am not particularly enamored of the “vaccines are permanent” argument. A vaccine is a minimal intrusion. A regulation could, for example, require that all unvaccinated people work in moon suits, but that would be far more intrusive into the workplace and the life of the worker.
I don’t see this argument working in either case, although some on the right side seem to have bought into some of the anti-vaxx propaganda.
Kevin M (ab1c11) — 1/24/2022 @ 10:49 amI may be a little bit of a grumpy old man shaking his fist at the sky this morning.
More than just the sky.
Kevin M (ab1c11) — 1/24/2022 @ 10:50 am> A regulation could, for example, require that all unvaccinated people work in moon suits, but that would be far more intrusive into the workplace and the life of the worker.
could it? granting an exception to the moon suit requirement for vaccinated people is just a backdoor way of requiring vaccinations. everyone must be required to wear moon suits, or nobody, but hinging it on vaccination is just hiding a vaccine requirement behind folderol.
aphrael (4c4719) — 1/24/2022 @ 10:50 amI would say that OSHA’s mission is more to prevent employers from imposing unwanted medical procedures on employees that affect the employees’ lives outside the workplace than to go and impose them its own self. See, UAW v. Johnson Controls (decided on other grounds) which involved an employer requiring fertile women to undergo hysterectomies in order to work in the higher-paying lead battery division.
Since we now know that vaccination prevents neither reinfection nor transmission, OSHA did not meet its burden to show that the regulation was justified for the protection of the involuntarily vaccinated’s fellow workers. So we can drop that for a lark. I think the majority got it right.
The test/mask alternative? Mmm, I’m no egalitarian by any means, but if it’s only for the unvaccinated then I can easily see how it’s arm-twisting to get people vaccinated. So, given what I said above, that it’s OSHA’s job to prevent this stuff not impose it, I’ll go with the majority on that too.
nk (1d9030) — 1/24/2022 @ 10:59 amhinging it on vaccination is just hiding a vaccine requirement behind folderol.
But folderol tailored to the workplace. Part of the OSHA mandate problem is that it is so broad as to constitute a regulation of the general population under cover of a workplace mandate.
Kevin M (ab1c11) — 1/24/2022 @ 12:15 pmWhat I find hilarious is that the government was arguing it had power over private employers, however situated,, but failed to issue any orders regarding state and local government employees. Presumably on the “cop, not little people” theory.
Kevin M (ab1c11) — 1/24/2022 @ 12:18 pmThe 6 conservative justices on the supreme court will push their agenda so analysis is irrelevant and meaningless. This is going to continue until the american people appeal to a higher court as they did in the dred scott decision and put an end to it Biden and the democrat party establishment are corporate establishment stooges who will whine and cry shame on you. However this gives AOC and the left the ability to take over power in the democratic party and finally settle the issue.
asset (e0d8be) — 1/24/2022 @ 12:29 pmTo a non-lawyer, Sotomayor’s comments just come off as bad and lazy ‘googled’ research- by her or her clerk/staffer- like they phoned it in. “Mandates…” like proper passports and legal immigration papers and so on… sure would like to see that mandated- and enforced. But then, ‘mandates’ take many forms:
‘Why Do We Stand When A Judge Enters The Room?
Why do we stand when the judge enters?
Stand when the judge enters the courtroom – When the bailiff says “all rise” as the judge enters the room, show respect by standing until the judge says to be seated. This is intended to show respect for the criminal justice system. You must also stand when the judge leaves the courtroom.
What happens if you don’t stand when a judge enters?
You’ll either sit and wait all day or possible face a contempt of court. Think of it as standing in respect to the “office” and not the [person.]
Do you stand up in court?
Attorneys always stand when they are talking to the judge or questioning a witness. Everyone in the courtroom must stand up or rise when the judge and jury enter the courtroom.’
https://almazrestaurant.com/why-do-we-stand-when-a-judge-enters-the-room/
” Badges? We ain’t got no badges. We don’t need no badges. I don’t have to show you any stinking badges.” – Gold Hat [Alfonso Bedoya] ‘The Treasure Of The Sierra Madre’ 1948
DCSCA (f4c5e5) — 1/24/2022 @ 12:39 pmFor federal workers, the question comes down to how does the vaccination relate to workplace safety. That determination may be different with Omicron than it was for Delta. Assuming Delta, it would seem there is good evidence that fewer people contract it and spread it. Now it’s overly broad for people who can tele-work, though maybe common sense would allow waivers. The issue becomes when we now move to Omicron…and the argument is moving toward lessening the symptoms, rather than lessening the transmittability (if that’s a word). At some point, the facts on the ground make it less persuasive that it is about workplace safety (non completely unpersuasive but others know the probability better than I do). There is a line…I’m not sure if the District Judge had it right or not….but at some point the government is dictating something beyond workplace health…..
AJ_Liberty (ec7f74) — 1/24/2022 @ 2:22 pmI assume she believed that. Possibly becausew without that, the mask mandate just doesn;t make sense, or at least does not look urgent . I womder, where did it come from?
From a bad memory, combined with not understanding something in the first place.
https://www.aap.org/en/pages/2019-novel-coronavirus-covid-19-infections/children-and-covid-19-state-level-data-report
Maybe she just doesn’t realize that the number of cases of Covid does not stay the same from week to week and month to month?
From a legal brief?
Or from the Internet, or from TEVEE?
The lawyers did not have the presence of mind or command of the facts to correct her (arguably it was a legally irrelevant point, but belief in the value or necessity of underlying provision t issue has a lot to do with what Supreme Court justices will rule – that was the idea behind the “Brandeis brief.”
If this was an almost universally recognized necessary measure then it wouldn’t matter who had the authority to impose it. But she must believe partisanship trumps a lot.
Sammy Finkelman (c49738) — 1/24/2022 @ 5:19 pmKevin M @2
I don;t know, but I;d like to see OSHA prohibit employment in any location within 300 feet where there have been armed robberies, and also require robberies or shootings to be reported to OSHA. That might get the attention of the anti-police and anti-incarceration movement.
Sammy Finkelman (c49738) — 1/24/2022 @ 5:24 pm10. DCSCA (f4c5e5) — 1/24/2022 @ 12:39 pm
They’ll assume you have a disability that prevents or impedes you from rising or from understanding the request. Unless the bailiff is like Joe Biden, who once told a man in a wheelchair to stand up.
Sammy Finkelman (c49738) — 1/24/2022 @ 5:32 pmThe 6 conservative justices on the supreme court will push their agenda so analysis is irrelevant and meaningless. This is going to continue until the american people appeal to a higher court as they did in the dred scott decision and put an end to it
I can hear the clamoring now.
Kevin M (ab1c11) — 1/24/2022 @ 6:58 pmFor federal workers, the question comes down to how does the vaccination relate to workplace safety. That determination may be different with Omicron than it was for Delta. Assuming Delta, it would seem there is good evidence that fewer people contract it and spread it.
By the time they sort this out, we’ll be onto phi or tau. That is probably the point of an emergency declarations — the normal procedures won’t avail.
I don’t expect to get this until/unless I become careless, or at least decide that I can’t worry about it anymore.
Kevin M (ab1c11) — 1/24/2022 @ 7:02 pm“@1. I may be a little bit of a grumpy old man shaking his fist at the sky this morning.”
There’s a lot of that going around of late:
https://www.youtube.com/watch?v=VglxdqWQIpQ
DCSCA (f4c5e5) — 1/25/2022 @ 1:38 am