This is a big question: are we a Nation of Law or a Nation of Men? Meaning, is it about laws based on the Constitution, or, are they all fungible, and can be changed on a whim, changed by feelings? Can the Executive Office simply find some little rational in a previously passed law where they can force The People to do what the Government wants? We know where Democrats are on this, as shown in this Time piece
The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules
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The major questions doctrine may sound like a dry crumb next to Justice Breyer’s admonitions, but how the Court applies the doctrine in this case could have even broader implications for our lives than the OSHA’s vaccination rule itself. At its heart, this is an argument over how much leeway federal agencies have to act or, as the Justices repeatedly put it in the argument, “Who Decides?” Justice Elena Kagan’s questions showed why federal agencies, which have significant expertise and can be held publicly accountable through presidential elections, should be given the leeway to take leadership positions on emerging issues such as vaccines to counter an unprecedented pandemic. Justice Neil Gorsuch’s questions, by contrast, suggested that Congress and State Governments should be the leader on major public health policies, noting that Congress has had a year to act on the question of vaccine mandates and chose not to. One answer to that challenge is that Congress has not acted because it gave that power to OSHA. A more realpolitik answer, though, is because there is no way the Democrats have the votes for such a law.
There’s a lot to unpack in just that one paragraph. First off, yes, at the heart is how much leeway the agencies should have to act, and the answer should be “none that isn’t Constitutional first and specific per a duly passed Legislative Branch law.” Second, if Democrats do not have the votes, well, that’s the way the Republic is supposed to work. If they cannot convince enough people to vote for it, well, then it should not be passed. Third, if that power is not specifically delegated to the Federal government, then it is reserved for the States and The People.
Fourth, if the feds can simply do what they want, then freedom is gone, liberty is gone, choices are gone, a government by the people for the people is gone. We’re simply an authoritarian nation ruled by elites, by people, some of who are elected, many who aren’t, with no accountability.
On its surface this is a case about vaccine mandates, but it is also a proxy war over the heart of the administrative state. If the Court applies the major questions doctrine in this case, that precedent will be used to constrain other agencies from acting in new, unprecedented dramatic situations, forcing them to wait for explicit authorization from Congress to act; authorization that may never come. Depending on what you think of the balance of power between Congress and the Executive that could be good or bad. But, if as it appears likely, the conservative Justices will block the ETS on this or an adjacent theory, the immediate casualty of this proxy war is the public’s health. The rule is estimated to save over 6,500 lives and prevent 250,00 hospitalizations over six months, although these estimates were pre-Omicron.
And what will they apply it to next? What might they decide next is For Your Own Good?
While reading tea leaves from oral arguments is always perilous, these arguments suggest that the Supreme Court is willing to upend the public health consensus that these federal initiatives are vital in favor of limiting the power of federal agencies. Some more narrow vaccine regulations will, like the one issued by CMS, likely survive because they are more closely tied to health care. But it is very likely that the Court may remove the most effective tool we have in combating COVID-19, comprehensive vaccine mandates that reach as many Americans as possible. That is a very high cost to pay in terms of sickness, hospitalizations, and deaths to change the balance of power between Congress and the Executive branch.
Just because you have consensus, and let’s not forget how many times they have been wrong during the Wuhan flu pandemic, doesn’t mean you get to just do what you want, not in our system. That may work in China, Russia, or Venezuela, among others, but, that’s not our system. I think everyone should get a vaccine. I won’t force them to do so.
Read: Biden Vaccine Mandate Is A Proxy War About The Administrative State »
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