The Supreme Court heard almost four hours worth of arguments yesterday about vaccination mandates. The Supreme Court heard one question repeatedly throughout the whole session. Who decides?The Congress, the States, the Agencies, and the Courts should all decide who is responsible for imposing a mandate to vaccine. This important question was addressed in Judge Sutton’s book. As I suspected, Judge Sutton’s important question was being considered by many of the justices and advocates.
Scott Keller (NFIB) was responding to Justice Breyer’s question during the first argument. He said, “The question here is not about what the country will do with COVID.” It’s Decide who wins that.” Justice Kagan leapt in, saying “Well, who gets–?” Chief Justice Roberts interrupts her, and says, “Maybe at this point we can go justice per justice.” You are welcome Chief. In that instant, I realized exactly what Kagan meant. Kagan was the first to respond when Kagan won during lightning rounds.
JUSTICE KAGAN : Herr Keller, I am going to refer to your -your last comment in your first argument. It is because you stated the question in your very last sentence. Who makes the final call?? That’s my opinion. That’s the question.
Kagan, unsurprisingly, would respond differently to that question than NFIB. Her answer would be left to the experts agencies that work for the President.
JUSTICE KAGAN: Respectfully, I –I think it has a different answer than the one that you give, so I’ll just sort of put a different version of it to you, which is, you know, you’re –I’m sure you’re right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.
Decide who?? Do you think it should be a full-time agency of policymakers who are fully politically accountable through President Obama? This policy isn’t one that can be ignored. People will vote for this policy if they like it. Vote against the policy if you don’t love it.
It is publicly-accountable and politically responsible. This agency also benefits from its expertise. It can be a combination of the political leadership and the agency. The courts, however, can make the final decision. The courts aren’t politically accountable. The courts have never been elected. They lack any epidemiological knowledge. Why would courts make this decision? …. And it’s not fair that the courts could overturn that decision and claim that it is our right to make decisions about vaccine policy within this country’s employment context.
It is the best form of presidential administration.
Justice Breyer asked another variant of Kagan’s questions:
JUSTICE BRIEF: Is it that? we decideYou know what? This is in direct contradiction to the decision of the Secretary in his crucial function, which was to evaluate these disruptions and weigh them against the benefits he perceives in the rule. Do we believe that disruptions are greater than what the Secretary believed? And we would also weigh them differently in relation to the health benefits rural communities provide. What do you think? For courts to rule?
Justice Kavanaugh took up the issue of who decides.
JUSTICE KAVANAUGH – I would like to continue with Justice Kagan’s case Who makes the final call?Question because that is what I believe gets to the core of it.
Kavanaugh, however, approached the question in a different way. Kavanaugh asked questions about OSHA’s major question doctrine and whether Congress intended for OSHA to answer this question.
JUSTICE KAVANAUGH: You’re relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can’t rely on statutory language that is The cryptic, vague, oblique, ambiguous.
A brief admin-law deviation. It is crucial to use the word “cryptic” because it has an entirely different meaning than “vague” and “ambiguous”. Chevron context. This means that the major question doctrine could still be applied even when a statute was not clear. Kavanaugh used the term “cryptic” multiple times more, and telegraphed his plans for applying the major question doctrine. Recall who decides.
Justice Gorsuch also returned the matter of “who decides.” The question of “who decides” was also raised by Justice Gorsuch. Is OSHA now able to make these regulations?
JUSTICE GORSUCH – Mr. JUSTICE GORSUCH: Mr. Flowers, I would like to go back to the question about –of Who makes the final call?. It seems that we have come to an understanding that all states are subject to the Commerce Clause, which Congress is required to enforce. This interaction is regulated by the major questions doctrine.
This is not to say that judges cannot decide on questions of public health. This is about setting the rules to make sure that each party follows them..
So, my thoughts really turn a lot to the main questions doctrine in the case.Do you think this is one the agency has decided on, or one Congress needs to address as a key question in our federal system?I’ve not heard much about it.
According to the Solicitor-General, the main questions question only applies to ambiguous statutes.
During his opening remarks, Ben Flowers, Ohio’s Solicitor General directly addressed the question of “who decides?”
Justice Kagan responds to Justice Kagan’s inquiry about the Who makes the final call?Congress has told us which judge decides at 2112 –28 USC2112 provides that stays can be issued by courts. The reason is that they acknowledge that it was done without prior notice and comment. Without the courts being able intervene in illegal activities, none would be allowed to. This is especially true in this case, when the –the act they are, in our opinion, strongly encouraging but mandating, vaccination cannot be undone.
Scott Keller was able to address the “Who decides” issue during his rebuttal.
The second thing I want to mention is about Who makes the final call?In the public interest. This Court’s past precedents would support that. This Court is not required to reverse any of our decisions. The controlling opinion of Justice Stevens, which was issued 40 years ago, stated that industrial union did not exist. It is unreasonable to suppose that Congress has given OSHA extraordinary power over American industries and that the OSHA emergency power is narrowly defined. Yet, OSHA has never mandated vaccinations, widespread testing, or any other type of mandated vaccines, or even on an emergency basis.
Judge Sutton is a must-read book for all. This is my review Who decides? Should be available later in the month.