https:\/\/www.vox.com\/22883639\/supreme-court-vaccines-osha-cms-biden-mandate-nfib-labor-missouri<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"“the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.<\/p>\n
The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.<\/p>\n
There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.<\/p>\n
But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.<\/p>\n
The NFIB case relies heavily on something known as the \u201cmajor questions doctrine,\u201d a judicially invented doctrine which the Court says places strict limits on a federal agency\u2019s power to \u201cexercise powers of vast economic and political significance.\u201d As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to \u201c84 million Americans\u201d \u2014 quite understandably a matter of vast economic significance.<\/p>\n
But, if this manufactured doctrine is legitimate, then it\u2019s not at all clear why it doesn\u2019t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers\u2019 rule \u201chas effectively mandated vaccination for 10 million healthcare workers.\u201d That\u2019s still an awful lot of Americans!<\/p>\n
What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of \u201cvast economic and political significance.\u201d And it\u2019s hard to draw a legally principled distinction between 10 million workers and 84 million.<\/p>\n
Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. \u201cCOVID\u201319 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,\u201d the majority opinion notes.<\/p>\n
But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including \u201crisks of fire, faulty electrical installations, and inadequate emergency exits.\u201d It\u2019s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives \u2014 that a vaccination \u201ccannot be undone at the end of the workday,\u201d unlike the donning of fire-safety gear \u2014 applies with equal force to both the OSHA rule and the narrow health worker\u2019s rule that the Court refused to block. Doctors\u2019 vaccinations can\u2019t be undone any more than an office worker\u2019s can be.<\/p>\n
The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.”<\/p>\n
…<\/p>\n
“The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.”<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[13],"tags":[588,409,483,1511,528,925,410],"class_list":["post-7185","post","type-post","status-publish","format-standard","hentry","category-article-share","tag-corona","tag-coronavirus","tag-covid-19","tag-mandate","tag-supreme-court","tag-vaccine","tag-vaccines"],"_links":{"self":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/7185","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7185"}],"version-history":[{"count":1,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/7185\/revisions"}],"predecessor-version":[{"id":7186,"href":"https:\/\/lonecandle.com\/index.php?rest_route=\/wp\/v2\/posts\/7185\/revisions\/7186"}],"wp:attachment":[{"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7185"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7185"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lonecandle.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7185"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}