Yesterday’s post was about the Sixth Circuit’s divided en banc decision regarding OSHA. Eight judges received the main dissent from Chief Judge Sutton. A solo dissent by Judge Bush was written and is worth reading. The COVID mandate does not regulate workplace safety, he explains. The agency has attempted to regulate commercial activity. It would go beyond Congress’s power. This power is beyond what a bureaucracy can enact unilaterally.
Bush begins by explaining that OSHA’s mandate goes beyond the powers granted in NFIB:
New precedent supports what the first principles say. Recent years have seen the Supreme Court reject a view that commerce powers “individuals” can be controlled. . . Whenever enough people aren’t doing what the government would like them to do. Nat’l Fed. Indep. Bus.567 U.S.A., at 553 (opinion by Roberts, C.J.); accord id. at 649–60 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). In the case that I mentioned, an individual was given authority to force those who don’t have health insurance to buy it. Id. Congress claimed the power to regulate the failure to engage in a commercial activity—the buying of insurance—because uninsured persons’ failure to do so had a substantial aggregate effect on interstate commerce. Id. 554 OSHA, on the other hand, claims that it has the authority to control the inability to participate in an act of a non-commercial activity—the taking of a vaccine—because unvaccinated persons’ failure to do so may affect interstate commerce.OSHA’s theory about the power of commerce is as follows even more extravagantIt is not the same as what has been rejected by the Supreme Court. Congress can’t solve a commercial problem through a mandatory purchase. How is it going to be able to delegate the power necessary for a commercial problem? non-commercial activity?
You may wonder if the OSHA mandate is not a regulation for commercial activities. After all, it regulates safety at work.
Bush claims that Bush’s pretextual reasoning is second. OSHA isn’t a safety law for workplaces. Bush explained:
Even if Congress and OSHA accept that they have the authority to regulate, it is not enough. Placement OSHA did not create a hazard which could affect interstate commerce. OSHA, however, has PretextuallyWhat is considered a danger at the moment? Life in the United States and throughout the world—COVID-19—as a hazard of the workplace. It is involved in these activities pretext in its attempt to bring a traditional matter of state concern—compulsory vaccination—within the ambit of federal jurisdiction.
Bush also states that the Federal Government cannot, under any precedent, pretextually declare non-commercial activities as commercial.
However, the caselaw is quite clear. OSHA, Congress and the United States Congress cannot authorize such a change. PretextuallyThis area can now be referred to as “commerce”, which gives the government a unique police power. Morrison, 529 U.S. at 616–18 (rejecting the notion that Congress may regulate domestic violence merely because of a purported “effect on interstate commerce”); Also see id. at 617–18 (“The Constitution requires a distinction between what is truly national and what is truly local.”); Lopez, 514 U.S. at 567–68 (rejecting Congress’s attempt to relabel firearms near schools a problem of interstate commerce).
Fourth, Judge Bush raises an argument made by the States:
States that argued in favor of the stay said this: Congress doesn’t have the authority under the Commerce Clause for individuals to purchase health insurance. Could it tell employers they can not retain employees without coverage? What if Congress can’t do that, how is it supposed to tell employers they are unable? Not vaccinated employees?
Many Americans work. Federal government could very easily ignore the rule. NFIBTell others AllEmployers can fire employees who fail to take action. Employers who do not comply with a federal requirement of non-commercial activities can be penalized by the Feds. Is there a limiting principle? This is a poor example of OSHA’s limiting principle.
Bush’s argument is compelling, but Judge Sutton’s “clear statement rule” analysis will be more persuasive even if it doesn’t move you. The courts should not be surprised when agencies seek to assert such wide-ranging power on the basis of a weak constitutional foundation.
My impression of Judge Bush’s ability to separate his writing on first principles questions has been tremendous. For example, he wrote a powerful concurrence in McCloud vs. Preterm ClevelandThat’s what we do Roe Originalist reasons. Judge Boggs is his worthy successor, whom I worked for.