Patterico's Pontifications

1/18/2022

Constitutional Vanguard: An Error in Justice Gorsuch’s Concurrence in the OSHA Vaccine Mandate Case

Filed under: General — Patterico @ 8:28 am



I think I have found a significant error in Justice Gorsuch’s concurrence in the OSHA vaccine/testing mandate case. I was working on a summary of the cases — which I will make available as a paid-subscribers-only post later this week — when I ran across the error. All the details are here.

Recently, I was preparing a summary of the Supreme Court’s decision in the OSHA vaccine mandate case (as well as the related CMS decision) when I noticed something odd. In his concurrence in the OSHA case, Justice Gorsuch cited a brief from OSHA in order to claim that OSHA had taken a position in 2020 that supported the majority’s position in the OSHA case.

The problem is, Justice Gorsuch was wrong. OSHA did not argue the position that Justice Gorsuch claims OSHA argued.

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