The three dissidents responded to the Supreme Court’s decision last Thursday that the Biden administration could not enforce its vaccinate or-test rule for private employees. Sonia Sotomayor and Elena Kagan, Justices Stephen Breyer and Elena Kagan, argued that the courts shouldn’t override government experts’ judgments on how to handle the COVID-19 pandemic.
They were correct to say that courts don’t have the authority to formulate public health policies. However, the courts AreThey are charged with making decisions about whether these policies should be legal. However, they renounce that responsibility and instead rely on politicians and bureaucrats to justify unprecedented freedom restrictions.
The Occupational Safety and Health Administration issued an emergency temporary standard (ETS), requiring that all employees of companies employing 100 or more must be vaccinated for COVID-19. They also need to wear masks and undergo weekly virus testing. OSHA is able to use an ETS to bypass the notification, comment and hearing requirements for the regular rule-making process. But only if OSHA shows it’s necessary to protect workers from “grave danger” at the workplace,
“Courts were not elected [and]”I have no epidemiological expertise,” Kagan claimed during oral arguments January 7. “Why on earth would courts rule this question?”
Justice Neil Gorsuch pointed out that “this question” wasn’t about how to deal with the pandemic. He concurred in the opinion. Two years later, Congress hasn’t addressed the vaccine mandates issue, with the exception of a Senate resolution from December 8, intended to repeal OSHA.
In the half-century since it was established, OSHA has never before encouraged or required employers to make vaccination mandatory—a solution that, unlike other workplace safeguards, extends beyond the workplace. OSHA requires that employers pay for workplace safety measures, but COVID-19 allows employees to foot the bill. This is to promote vaccination.
What was at the heart of this legal dispute between OSHA and the majority in this case? COVID-19 is a workplace hazard. It’s not a daily risk for Americans. That goes beyond OSHA’s mandate. Although the OSHA hazard definition was vague enough to justify a wide-ranging solution for 84 millions employees, the majority believed that OSHA had to provide more precise and specific information to account for the vast differences in workplaces and industries.
Last August, the Court faced a similar problem when it stopped the Centers for Disease Control and Prevention’s eviction moratorium for landlords in the United States. This was not about whether or not the policy was an intelligent response to COVID-19. It was more about whether Congress had granted the agency authority required by the separation between powers.
States, which are not federal agencies have broad power to protect the public’s health through the “police authority” they were granted when the Constitution was ratified. However, this power is not without limits. This was illustrated by injunctions from the Supreme Court against restrictions placed on religious gatherings that are pandemic-inducing.
Similar to the OSHA and CDC case, the question was not whether or not the challenged policies are sensible or effective. They were discriminatory against religious activities, which was a violation of the First Amendment.
In all cases Breyer, Sotomayor and Kagan voted against, asserting that the Court lacks the expertise necessary to assess policies designed to address a public emergency. Sotomayor stated that the Court was playing a dangerous game by second-guessing health officials’ expert judgements. The Court also blocked New York’s 2020 restrictions on worship houses.
In that instance, the majority agreed with the court’s decision. The Constitution can’t be forgotten even during a pandemic.
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