The Supreme Court debated Friday whether to stop enforcement by the Biden administration of COVID-19’s vaccine mandate for private employer. Most of the conversation was focused on OSHA having the statutory authority. However, justices and lawyers touched upon a constitutional objection to the mandate. This argument hinges on the separation between state and federal power.
Justice Sonia Sotomayor denied that she understood this distinction.
OSHA’s emergency temporary standard (ETS), published November 5th, requires that all employees of companies over 100 have to receive a vaccine or use face masks. They also must submit to weekly viruses testing. OSHA argues that it does not have power to issue this order. But Ohio Solicitor-General Benjamin Flowers says that there may be states with their own laws that can impose such an order. [policy] themselves.” Sotomayor claimed that she found the concession puzzling.
She said that “if it’s within police power to safeguard the health and wellbeing of workers,” it was. “You seem to believe the states could do it but the federal government cannot, even though the country is facing interstate commerce crises similar to those facing states within its borders.” I’m not sure I understand the distinction—why the states would have the power but the federal government wouldn’t.”
Flowers noted that “the federal government has no police power”—the general authority to enact legislation aimed at protecting public health, safety, morals, and welfare. The Constitution gives states broad powers, but the federal government has limited power. The 10th Amendment reflects this principle. It states that “the powers not delegated by the Constitution to the United States nor prohibited by it for the States are reserved to each of the States or the people.”
Sotomayor made reference to another of the delegated power: regulation of interstate commerce. That is the constitutional basis for OSHA’s ability to create regulations that protect employees from occupational hazards. Flowers pointed out that, regardless of how broad the Supreme Court interprets it, the Commerce Clause does not grant the federal government any general police powers. Sotomayor disagreed.
Sotomayor: The power to protect the safety and health of workers is in its hands. We accept[ed]Constitutionality of OSHA
Flowers: Yes. Yes.
Sotomayor: They have the police power to protect employees.
Flowers: This power would not be called a police one. I think the Commerce Clause power allows them to address health…in the context of the workplace.
Chief Justice John Roberts, the Chief Justice of Canada, interrupted the discussion and said, “It is a good moment to proceed to our sequential questioning.”
Sotomayor did not refer to a federal police power, but it was more striking than her false statements about the impact of the omicron variant on children. Her exchange with Flowers was a source of concern.
“Sotomayor claimed not to have the ability to distinguish between state police and federal authorities.” National ReviewIsaac Schorr was the author. “Sotomayor says he doesn’t understand [the]Ilya Shapiro is the director of Cato Institute’s Robert A. Levy Center for Constitutional Studies tweeted. “Mind-boggling. Calls OSHA’s regulatory authority…a ‘police power.’ OH SG tries explain con law 101. Roberts saves the embarrassing discourse.
Maybe Sotomayor misspoke when she referred to a “police force”, but what she meant was the Commerce Clause’s federal authority. But the extent of that authority—and whether it covers a policy that arguably amounts to a general vaccine mandate—is one of the issues in this case.
The unanimous panel of three judges ruled that the U.S. Court of Appeals, 5th Circuit had extended the stay on ETS in November. They said it “likely exceeded the federal government’s authority under Commerce Clause” because the mandate regulates economic inactivity and falls within the States’ power. A divided panel of three judges lifted the stay after the ETS challenges were consolidated. In addition to the other arguments that the 5th Circuit found persuasive, the majority rejected the idea that the ETS “regulates noneconomic inactivity”—i.e., the choice to forgo vaccination. The claim was “missing.”[es]Judge Jane Stranch wrote that “the mark” refers to employers who have more than 100 employees. It is not individual employees that are subject to the ETS regulation. And “it’s indisputable, that such employers are involved in commercial activity that Congress has power regulate when it comes hiring, buying, selling, or producing goods.”
Jeffrey Sutton, Chief Judge of the 6th Circuit, had previously expressed sympathy with the Commerce Clause argument in opposition to the ETS. “Does this regulation of noncommercial inactivity—a requirement that the unvaccinated get shots or weekly tests—exceed Congress’s Commerce Clause power?” Sutton asked in a dissent when 16 judges split evenly on the question of whether they should hear the case rather than leave it to a three-judge panel. It is doubtful that this federal power would sweep this wide given the vertical separation between powers in our Constitution. The Commerce Clause is there, yes. The Commerce Clause gives Congress many powers. It also helps the Federal Government resolve interstate commerce-related collective action problems. But through it all, it remains a Commerce Clause, not a collective-action clause—and not a clause that grants the national government all of the police powers customarily associated with state governments in order to fix any new societal challenge.”
Shapiro makes the exact same point in A Newsweek essay. He writes, “It is a fact of the American system that sovereignty is split such that states have power within their respective domains, and Washington, D.C., governs national matters like interstate commerce, defense, and so on.” Although modern constitutional law has made it more difficult to distinguish between states and federal powers, it is clear that OSHA has attempted to impose an occupational vaccine requirement in Virginia.
Shapiro notes that “federal lawmaking powers are constitutionally enumerated—and thus limited to those listed in Article I, Section 8—while states enjoy a broader ‘police power’ to regulate on behalf of public health, safety, welfare and morals.” Sotomayor made this crucial distinction when she spoke about the federal “police authority.”
When President Joe Biden announced the OSHA rule in September, he presented it as part of his plan for “vaccinating the unvaccinated.” MSNBC anchor Stephanie Ruhle calledThe ETS is “the final workaround” for Federal government to mandate vaccinations. Ronald Klain (White House Chief of Staff) retweeted Ruhle’s comments, strengthening the suspicion that Biden wanted to conceal a general vaccination mandate as a workplace safety precaution authorized by Commerce Clause.
On Friday, Chief Justice John Roberts alluded to that incident, saying the ETS “has been referred to…as a work-around.” Justice Neil Gorsuch used that term. Shapiro writes that OSHA’s workaround is an attempt to shorten the legal process, given the fact that federal agencies cannot impose general mandates, because they lack the police power.