That's just about the exact opposite of what the supposed "conservative" Justices (now numbering five for certain) have consistently argued for 50 years: they invariably say we must give full effect to Congress's exact words, and not add (or take away) anything. Orignalism, they call it. That seems to just be sophistry now.
The last time there was a pandemic of this order (1918). . . there was no OSHA. There was no vaccine. But everyone wore masks, and if a vaccine had existed, everyone would have taken it -- just as with polio, thirty-five years later. To argue that a reason to prevent this vaccine standard, despite direct authorization in very broad language from Congress, in CREATING OSHA as an agency. . . requires a legislative double-check, is silly. Precisely because pandemics seem to come only once a century, or so (or because we know that one cannot "undo" a vaccine). . . the agency needs the ability to address emergencies, broadly construed. Any other reading of the statute is so illogical and unscientific. . . as to be unbecoming the purportedly learned jurists on the highest court. Realistically, Mr. Biden may have to rework parts of his standard, but some version is doubtlessly constitutional, and expressly authorized by dozens of statutes. End, update.
Well, that's fairly surprising.
Chief Justice Roberts finds a limit nowhere articulated in the OSHA's authorizing statutes. And he declines to call it a "major question". Back to the Sixth now, on the merits.
. . .That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. . . .
Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category. . . .
More later; I firmly disagree with that last bit. Mr. Biden was elected. Elections have consequences. Full stop. Not Roberts -- and when not pressed for time, the Supremes should say so, as well. Falling silent -- the dissent is correct -- but I'm stuck on billable matters.
Out.
नमस्ते
3 comments:
The dissent has it right:
. . . The majority, in overturning that action, substi- tutes judicial diktat for reasoned policymaking.
The result of its ruling is squarely at odds with the stat- utory scheme. As shown earlier, the Act’s explicit terms au- thorize the Standard. See supra, at 4–6. Once again, OSHA must issue an emergency standard in response to new hazards in the workplace that expose employees to “grave danger.” §655(c)(1); see supra, at 2–4. The entire point of that provision is to enable OSHA to deal with emer- gencies—to put into effect the new measures needed to cope with new workplace conditions. The enacting Congress of course did not tell the agency to issue this Standard in re- sponse to this COVID–19 pandemic—because that Con- gress could not predict the future. But that Congress did indeed want OSHA to have the tools needed to confront emerging dangers (including contagious diseases) in the workplace. We know that, first and foremost, from the breadth of the authority Congress granted to OSHA. And we know that because of how OSHA has used that authority from the statute’s beginnings—in ways not dissimilar to the action here. OSHA has often issued rules applying to all or nearly all workplaces in the Nation, affecting at once many tens of millions of employees. . . .
"Orignalism, they call it. That seems to just be sophistry now." It has been this way since Scalia.
Indeed -- discouraging, just the same. . . .
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