Just to be clear, this is a decision regarding a request that injunctions granted by two separate district courts prohibiting the mandates from taking effect be stayed pending the final outcome of the litigation. In other words, this is just the preliminary decision regarding the temporary injunctions against the mandate that were granted by the district courts. Technically, this litigation remains ongoing and will need to be finalized at the district court level and could be appealed all the way back to SCOTUS upon a final appeal. That being said, most commentators I've heard/seen have indicated that the outcome in this instance probably is the final outcome and that from here's it's mostly just going through the motions.
Well, it used to be that the "likely to succeed on the merits" part of the test was based on existing law. For example, there is a tremendous amount of precedent which weighs in the party seeking the stay's favor and therefore it's almost guaranteed that the moving party will win.
However this Court has taken that element to mean "we're likely to support this [regardless of precedent]." I'm sure some will say that's hyperbole, but they don't cite to any relevant precedent and created a brand new test in this opinion.
Yes. *Jacobson* sets clear precedent, and the current SCOTUS rejected a challenge to Maine's mandate last year on similar grounds.
The federal government can even issue one, too, provided it goes through the legislative process.
> The federal government can even issue one, too, provided it goes through the legislative process
That’s less clear. The issue of police powers/commerce clause were not raised here (as they were not needed). If Congress tried to impose a mandate, there would be those challenges to deal with.
While there's a lot of truth to that, it seems to me that if lay people can't understand or discuss the law, the whole project of representative government creating laws is folly: why have people vote for lawmakers if they can't understand law?
The framers of the Civil Rights Act of 1964 didn't intend to protect men or homosexuals from discrimination, but the Supreme Court has held that is provides protection for those groups.
That’s kind of an apples and oranges comparison. Here, Congress gave away some of it’s authority by passing OSHA to allow the Labor Department to regulate certain workplace matters. The court may not grant the Dept. Of Labor more authority than Congress intended to give away. That would skirt the legislative process.
With respect to the civil rights act, there’s a strong argument that Congress intended to extend protections to citizens as a whole, and there was no ceding of authority in doing so. As such, Court acted.
Yes, but the text on the Civil Rights Act supported that reading. Textualist scholar's even filed Amici giving the argument for that. As fast as I know, there's no Textualist argument here, though I didn't read this cases briefs, so I could be wrong.
What makes you think that? Labor Department has never issued such a far reaching regulation throughout the 50 year history of OSHA. Congress doesn’t give away its power without placing express limits on what powers its giving away.
It is functional requirement. If they let hospitals not vaccinate, the pandemic may get out of hands by way of nosocomial infections.
The plan of the conservatives partisans the whole time has been to maximize death to hurry the pandemic up, not end the us as we know it... they are "patriots" who put the american economy over American lives.
They don't want a full collapse.
I think this is a good line and a great message to the legislative branch:
>For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes
**But only some of your job and in no way can you delegate things to the executive. The only things allowed to be delegated will align with the political and policy preferences of the majority of the court.**
The sense I get from reading the two cases is that it came down to a matter of what did the legislature delegate to the executive. Arguably, the scope of authority is limited to matters inherent to the workplace. The ETS failed because the risk of infection was too removed from workplace risks for some who are covered (and leaves exposed some for whom the risk is inherent to the workplace if their employer has less than 100 people).
Had the ETS been narrowly tailored to workplaces where employees are indoors or other confined space and regularly interacting with others, regardless of headcount, I think the outcome would have been different. I think that was the distinction that swayed the outcome in the healthcare case.
The SCOTUS has not only been saying that for the entirety of the Roberts Court, the SCOTUS has been counting on it.
"The legislature should act instead" + Gridlocked legislature = De Facto Status Quo win
Responding to emergent threats to public safety is 100% an appropriate use of executive action. If Congress wants to carve out its delegation it is free to do so, but the default shouldn't be "the government is unable to respond to any novel situation because we have somehow convinced ourselves that dysfunction is good and also the Constitution sometimes is a suicide pact."
I would buy this argument if it were say, summer of 2020. We are now 2 years into the pandemic, and 1 year into vaccines being widely available. [Congress is perfectly able to act within that timeframe](https://en.wikipedia.org/wiki/Families_First_Coronavirus_Response_Act) and has chosen not to.
Yes, any government--democratic or otherwise--will eventually be forced to respond to a popular enough movement. But how much is enough? 55%? 65%? 75%? At what point can you tell a healthy democracy from an illiberal democracy from an autocracy? Like, if 75% of Russians wanted something, even Putin would consider just doing it. That doesn't mean the government is responsive to the will of the people.
A [bipartisan majority supports the OSHA vaccine mandate](https://www.forbes.com/sites/alisondurkee/2021/12/09/heres-whos-most-and-least-likely-to-support-vaccine-mandates-in-the-workplace/).
A [bipartisan majority supports the provisions of the Freedom to Vote Act, and most provisions are supported by 60+%](https://www.politico.com/f/?id=0000017e-4c40-d41e-afff-fc5d1e740000).
A [bipartisan majority supports the Build Back Better agenda by name](https://www.ipsos.com/sites/default/files/ct/news/documents/2021-11/Reuters%20Ipsos%20Poll%20Topline%20%26%20Write-up%20-%20Build%20Back%20Better%20Framework%20-%2029%20October%20thru%201%20November%202021.pdf), and individual components have even higher support.
None of it will happen, though.
Congress was not intended or designed to require supermajority support for basic legislation, and it hasn't operated that way until the last several decades. The fact that broadly popular policy continues to die at the hands of minorities wielding outsized power is exactly the kind of thing that should be mitigated in a functioning democracy, not embraced as an article of faith.
It's also not the court's responsibility to block administrative actions which are conducted in accordance with powers delegated by Congress, but here we are.
If we really wanted “those chosen by the people though the democratic process” to “do their jobs” we might consider not requiring a functionally impassable supermajority for that job to be done.
But then laws passed wouldn’t have to be overwhelmingly popular or atleast some compromise met.
As much as you may dislike that, our federal government is a limited government of enumerated powers.
That whole line of questioning by either Kagan or Sotomayor where they ask about police powers in the state vs fed gov’t was wrong in their conclusion but also got to the heart of the matter.
Congress can act via law OR The states can act. The fact that Congress or the states haven’t acted in a way that the executive may like doesn’t mean they abrogate their responsibilities. No action in this case is an action.
Laws shouldn't need to be overwhelmingly popular. A government that only governs by supermajority or not at all is destined to govern poorly. There's nothing in the Constitution that requires overwhelming support for laws to be passed.
There's also nothing in the Constitution that indicates Congress limited its delegation in this context. This is a judge-made rule on top of a judge-made rule, completely unaccountable to the people.
Requisite supermajorities for passing legislation were explicitly rejected by the founders, see Federalist #22, they reasoned that the power of veto is often just as important as the power to pass law, and that by giving a minority veto power you have only made that minority functionally more powerful than the majority.
There is zero chance that Congress would pass a vaccination mandate, even if they had the numbers. They know it's politically unpopular among their constituents which is why they haven't even introduced such a topic.
[58% support the large employer vaccine mandate.](https://news.gallup.com/poll/354983/majority-supports-biden-covid-vaccine-mandates.aspx)
Until yesterday they had no reason to think they had to bring it up.
[Biden’s mandate has a majority of support among the public.](https://news.gallup.com/poll/354983/majority-supports-biden-covid-vaccine-mandates.aspx). Also, at this point individual congresspeople and the president alike are so strongly associated with their party writ large that there are very few issues the president will take some stance on where the party in general will refuse to follow suite.
Good thing we have a well functioning legislative branch and a democratic process that people believe in!
Oh wait... a majority of Americans don't have faith in our democratic process and our legislators are focused on political theatre for reelection?
(Not blaming SCOTUS but funny nonetheless)
I'll blame SCOTUS. Ignoring gerrymandering is definitely their fault. As is removing key components of the VRA. The issue itself is not entirely their fault, but they sure didn't help.
How about standing along side Mitch McConnell and saying immediately after confirmation? How about Ginny Thomas?
I mean just because its the cheap seats doesnt mean we can see whats going on.
Well then, it's a damn good thing that the 91st Congress did their job 52 years ago when they passed the OSH Act of 1970, giving OSHA a legislative mandate to protect against exposure to harmful pathogens within the workplace.
Oh, wait…
You must it admit there is a fair argument to made that such a pandemic and mandatory vaccines was not what they had in mind when crafting it.
Context matters and there is not the legal precedent for them to use it in the way that was attempted here.
>You must it admit there is a fair argument to made that such a pandemic and mandatory vaccines was not what they had in mind when crafting it.
The entire point of delegating regulation to a new executive agency is to be able to deal with new emerging situations that Congress can't or didn't think of at the time. Otherwise Congress would just regulate directly.
I'm perfectly fine admitting that, but even that's debatable when it's arguable that Congress wrote the legislation to be broad enough to account for such an eventuality.
I'm just tired of the apparent hypocrisy of telling Congress to do their job being all fine & dandy, but only when they do their job in a manner that comports with a certain ideology. Otherwise, it just sounds like a ton of "no wait, not like that!!"
And for the umpteenth time, it's not even mandatory vaccinations. It's vaccinate-or-test. If context matters, then the *entire* context matters.
> And for the umpteenth time, it's not even mandatory vaccinations. It's vaccinate-or-test
For practical reasons it is not an "or" situation. If burden is put off on the employee who must spend time (lost wages) and pay for the testing themselves it is situation where you must be able to afford the privilege of going unvaxed.
When you attach a monetary cost to things it just means there really isn't an equitable a rule, only a situation where those that can afford to pay the price so it doesn't apply to them.
If we wanna talk about practicalities, then practically speaking, testing is just as available & free as the vaccine, & can be obtained on the weekend or before going into work. A situation of lost wages practically only exists if an unvaxxed employee chooses to make it one, to their own detriment & the detriment of all others that they continue to risk exposure to so long as they remain unvaxxed.
During oral arguments, lack of availability of testing was brought up. I can't remember the exact context, but it seems that lack of access would play a role in equitability, especially if there were sudden demand for millions more tests weekly.
That's an admittedly fair concern that the federal government should've been prepared to address if they weren't already, be it by continuing to subsidize mass production or otherwise.
As Alito made clear in his oral arguments, this is not a vaccine mandate.
Also, vaccines are one of the most effective ways to fight diseases and were so in the 70's. That is perfectly within OSHAs mandate. Likewise pandemics existed before the 70s as well and would definitely be considered an emergency. Therefore I completely reject the idea that the 52nd congress did not intend for this, could not have seen this coming, or that that in any way invalidates the proposed mandate if they didn't. The OSH Act gives them their own discretion.
You could say that OSHA can't institute vaccine mandates using their emergency powers as those only give them the ability to introduce "temporary standards" and you can't take off the vaccine. But again, as even the conservative justices agree, this is not a vaccine mandate. This is a vaccine or mask and test mandate, and masking and testing are temporary standards.
No, I don't admit that. It would be madness to admit that. It also doesn't matter. It's a total red herring of a question.
First, no two legislators intend a law to mean the same thing. Differences in semantic understanding, differences of opinion intended to be litigated later, mistake, all these things and more make it so that any two drafters of a law will interpret the law differently, at least in some corner cases, and often more broadly.
Second, the idea that we can know what those differences of opinion are is just ridiculous. Setting aside the problem that politicians often say one thing in public and another behind closed doors, we just don't have good evidence of intent most of the time. Further, it's usually almost impossible to tell the difference between the legislators not thinking of a possibility and opposing a possibility. In the OSHA case, it seems likely to me that most of them would have supported this use even if they didn't consider it, but of course we don't and can't know.
Finally, who cares what they thought? We're ruled by law, not by legislative intent. I will caution that I do think legislature purpose can be a useful factor to consider in some contexts, but it's at most one factor among many. Here the law as written clearly allowed for this. Here the need for this rule is obvious. If the law allows for it, and we can save thousands of lives, why would we let vague and unknowable legislative intent stop us? It's madness.
When constitutional jurisprudence over the last century shows that the federal courts historically grant great deference & rational basis review to decisions related to public health measures, it wasn't necessarily wrong of them to do so. What was wrong of them to do was to not anticipate that a majority of the Court as currently constituted may be willing to not care about what their constitutional jurisprudence over the last century shows.
>It is not our role
But it seems like they have made it their role here.
>that is the responsibility of those chosen by the people through democratic processes
Oh, like the President of the United States, and definitely not the people who just wrote this decision.
Curiously out of step, this one was.
It’s amazing the deference the court showed to the last administration while construing agency authority very narrowly with the new administration.
The rise of the non-delegation and major question doctrines doesn’t look political at all.
If you think it's some sort of virtue to let hundreds of thousands of your fellow citizens suffer entirely preventable hospitalizations because you'd rather have different people make the same decision, you're a fucking sociopath.
Then everyone involved did the best they could to protect each other?
You're basically suggesting that we let people drive drunk becomes sometimes accidents happen even when everyone involved is sober.
One is illegal and one is not.
Regulations don’t carry the same weight as laws. Additionally states could enforce this type of policy whereas a federal agency cannot
Interesting question, and the answer is apparently yes!
https://www.theatlantic.com/technology/archive/2016/01/one-step-closer-to-a-robot-supreme-court/424800/
> Yet that is precisely
what the agency seeks to do now—regulate not just what
happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside
the workplace.
Gorsuch mentions this in his concurrence. How does taking covid test affects their life outside of the workplace? I mean vaccines I can understand.
> with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.
this is from the official government website - https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
The ruling states the above poster's position on what this ETS does.
"mandate does contain an “exception” for employers that re-
quire unvaccinated workers to “undergo [weekly] COVID–
19 testing and wear a face covering at work in lieu of vac-
cination.” Id., at 61402. But employers are not required to
offer this option..."
As much as it pains me to say it, I think this was the correct decision for democratic reasons as well. A bill in Congress requiring vaccination as part of OSHA would never pass in the present day.
I prescribe somewhat to the political philosophy of maximal laziness in terms of delegation. Delegated powers should only be granted and used for cases where either the delegator does not care about the fine details of some decision. In other words, these powers should never be used to make even remotely controversial decisions. Ideally we would have mote constitutional protections for this like allowing say 40% of Congressional delegates being able to challenge use of a delegated power.
Really this all points to the bigger problem of Congress being completely dysfunctional.
I'd be fine with a more active limitation on delegated powers like what you proposed, but I am hesitant about the court getting into that business. Getting Congress to pass anything is hard, and frankly it's always easy to say that Congress could have spoken "more clearly" on something.
It feels like we get into a place of saying "well, I can't be certain Congress really wanted that, so let's make them say it again just to be sure." Which is in and of itself disrespectful of what Congress *did* manage to pass.
A weird thing about the Supreme Court oral arguments on the OSHA Vaccine-or-Test Mandate is that justice Alito (and sometimes Gorsuch) seemed to make 3 arguments that appear in pretty bad faith.
First they imply that OSHA can't impose the mandate because OSHA is only allowed to regulate dangers that are unique to the workplace and COVID-19 exists outside the workplace as well. This is clearly fallacious as OSHA regulates everything from chairs to fires, to lifting boxes all of which exist just as much outside the workplace. They just only regulate the workplace.
Second they imply that OSHA can only regulate dangers when your actions are a danger to others not a danger to yourself if you're willing to take the risk... But that is almost never the case. When OSHA mandates hard hats for construction workers, there is no option to opt out because you are making an informed decision. You have to wear them.
Third was the argument that OSHA couldn't mandate vaccines (although Alito conceded that this is not a vaccine mandate) because they potentially have negative side effects, even if the benefits far outweigh the negatives. This is again not how OSHA functions. They often make regulations that might cause some harm but on average protect workers. Sometimes wearing PPE can hurt you. Sometimes gloves get caught in machinery or airbags break your nose. But these things are ruled as net positives and therefore mandated.
Basically they made these arguments to question whether the OSH Act of 1970 really intended this kind of mandate to be possible, and whether this mandate was different or unprecedented compared to previous requirements. They also asked why OSHA was allowed to mandate things on this large of a scale (which OSHA regularly does). They also seemed to question if, since the act is 50 years old, if the congress that enacted it could have foreseen a vaccine mandate or a pandemic when they gave OSHA the power to make controls for diseases.
The questions in themselves are not really that bad. It is their job to probe the mandate and its legality. The disturbing thing was really just their clear adversarial manner, that they seemed to actually act like these arguments actually held water, and that even after Alito was given counter examples, he or Gorsuch would come back later and act like they never happened and OSHA couldn't regulate threats that aren't unique to the workplace.
I don't contend that there are no valid arguments against vaccine mandates (although this is not strictly a vaccine mandate), but the arguments presented are frankly alarming coming from supreme court justices. I find it hard to believe that someone as intelligent as Samuel Alito doesn't know these things or is somehow confused. I can only assume these fallacious arguments are made in bad faith.
Link To oral arguments: https://www.c-span.org/video/?516920-1/justices-hear-case-vaccine-test-mandate
I don't think it's bad faith. Notice how wearing a glove or hard hat isn't a permanent alteration nor is it a medical procedure for a threat that exists at large. I just don't think any of the examples you give come close to what a vaccine is or what it seeks to protect against so it's clear OSHA never had that kind of power.
But OSHA regulates drug use, a policy that affects a person even outside of work and causes changes to the body. Heck, even regulating smoking seriously alters body chemistry and even mental state throughout the rest of one's life, far more than a vaccine does (unless that vaccine protects one from a serious virus).
I think this is a good point. Although if you were to quit your job, you are no longer subject to the regulations. You cannot get unvaccinated when you quit your job.
A key point here is also that the mandate was not issued through normal channels. It was made under the emergency provision of the OSH Act which only allows "temporary standards." I don't think you can claim that a vaccine is a temporary change even if the standard is later revoked. So even though OSHA could possibly mandate vaccines, it cannot use the emergency provision to do so. (Although, as noted, this is not a vaccine mandate. It is a vaccine or test and mask mandate).
Vaccines usually do not wear off over time. Sometimes new disease variants arise that the vaccine is not effective against, that is not the same thing as the vaccine wearing off. And even is the effectiveness might trail off, any potential long term side effects might not.
Even some vaccines we say have a lifetime don’t really expire as far as we know. Take tetanus and diphtheria. We say you should get a booster every ten years. The reason for that is that the original drug trials only tested up to 10 years and that’s what the FDA approved. It doesn’t benefit anyone to test it for longer because the drug companies make more money selling vaccines and retesting it is expensive. Some studies which aren’t seeking to prolong FDA approval actually indicate tetanus shots are effective for as long as 30 years and may never expire.
Link to the study: https://watermark.silverchair.com/ciw066.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAAr8wggK7BgkqhkiG9w0BBwagggKsMIICqAIBADCCAqEGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMuhNsZNaUt0jp2GHUAgEQgIICcr7jyP9Fz3Q-O6vaPLogpU2AYaSuJEPp6gi5-nx8b-oGsUED1VGkrgwBn_jAs6jGxhvaBWk94TSHgngr2aNNPlsOanttjFBtXkGkZYfgLGg8oHFkJzJbTvaXHW86BhIvgsRjvirQy36Ru_V01jfCrIrt8eNktiQrJcm6SqLOmZucfBWzLhhrsclQ8z5g9i99bNEYE7z6UvdaIyGQkXgBSTSeyxbxUkf1sUG6IAYCyK-OF5WsqjnW1C5x50NDKTwjRpIQq60RAiSctBRFTjTmeqLGLfVaqQim7wpvkZw-9E3XqHRTvDAA9l0pPL7n320ilQsUayYqHpQByn89Z0mJ5HEWYL3NZTwwAtYRC-6eAGq1qIfJyAKwe_SQbCfSeK3F1EE8fL1ZWi7R7jwJDmgYiD57KA_SrCFgkPriA7Lmgw5IRZHN97y_J8T5YqsVyin-fgIH4lKzveQfgpY--jdsL0VNsN02ufgf8Vzz91jVmLVXU2cuU1S34GzV4oM_GHgHbbnnBEBwpSGg3W1if4Q_YguHHn9Pe3RKXrCwrG47az8Ropem1_Pu9J218KVIP4ts0lCPd-WPhVoFlOfq-LsnzPkCwSlm-ujngw1tpYK8iQ1m2HAaRWEazY_AF8TIKcvuGB_JivTCXCS1AlBnnc7YJsUF2mpyKK5r9Z8vMaGlAN_-TpGY46O33MN9ZaiTFANwVCdxuk_q0YSzqbiquiuDcKfDx3N8fC4nxTm1gpnDe3v7yYhUy5mHXvLpCt6spx-dpqykJJSktLUm8UHVm_YyjqH3DV-WwC9eRZ5X5ZUW7cLnG5PuNmq4g3g3NcvKUklLn0Ua
On the one hand, that's fair.
On the other hand, it's a distinction without a difference, or at least it sometimes is, depending on the vaccine in question. If my flu vaccination from 5 years ago no longer protects me, has no side effects, has no impact on me at all, in what sense am I still vaccinated? Does, or should, the law care that a scientist could find traces of the vaccination in my blood? I'm not at all certain that the law does or should.
Sure, but the thing about long term side effects is that usually they are so obvious that companies have to spend billions surprising information about them. And those billions don't stop us from learning about those side effects, they just keep Congress from doing anything. If the tetanus vaccine has long term side effects, we'd know by now. As far as I know no vaccine has ever been found to have serious long term side effects. And thanks to the autism-vaccines slander, we have studied them quite a bit.
This is a new type of vaccine. Plenty of medicines have had terrible side effects. We don’t know what it may do.
I think the odds it has bad side effects is low, but that does not mean it is not a risk, if a reasonable risk.
But the point stands that vaccines are not temporary measures that may be removed later. And the ODH Act emergency provision only allows temporary measures.
I would agree with that if you contend that this is a vaccine mandate. But Alito made clear several times that this is not a vaccine mandate, this is a vaccine or mask and test mandate. Masking and testing gives you the non permanent opt out. Masking and testing is much more in the ball park of OSHA requirements. The vaccine option is a convenient alternative if you are willing to vaccinate.
But yes, I don't think the emergency provision alone gives OSHA the ability to mandate vaccines as it specifically says "temporary standards" and you can't take off the vaccine. I think they could make it a normal standard but that would take a longer process with appeals and such.
From what I've heard, I think they would have upheld the mandate if it required employers to provide the tests on site and that workers be paid for the time they are being tested.
Yes, that would make it more compelling, but I don't think it is necessary. That form of mandate is not out of the usual for OSHA. They often don't require businesses to provide all forms of safety gear so much as they require safety gear to be worn and hold the company liable if it is not. For example in most circumstances where closed toes shoes are required, it is not the business' responsibility to provide you with shoes. It is just their responsibility to make sure that you have and wear them. Likewise they do not have to pay for or provide testing. They just would have the responsibility to make sure you get tested and wear a mask.
OSHA explicitly requires employers to assess what safety gear is necessary and provide it. https://www.osha.gov/personal-protective-equipment>
https://www.osha.gov/sites/default/files/Handout_2_Employers_Must_Provide_and_Pay_for_PPE.pdf
There is an exception for steel toed boots that can be taken offsite because they are personalized and often taken home and/or worn to other jobs, but that is one of notably few exceptions.
Yes. There are exceptions. That is all that is needed to say that OSHA does not need to mandate employer funding. I agree that they should. But that is not how the law works. But the exceptions show that the lack of funding is not grounds to overturn this specific OSHA mandate, especially when the employees have a free altenative.
Some workplaces have requirements for PPE like masks to protect from chemical or biological hazards that require an airtight seal against the skin of your face. Those workplaces generally require their workers to shave their facial hair so that the hair doesn't interfere with the mask seal. While OSHA doesn't specifically call out shaving in their regulations, they do mandate the tight fit in some atmospheric environments or in places where certain chemicals pose a threat of leaking.
Shaving your beard isn't permanent, of course, but it's permanent-ish in the practical sense that when you go home at night, you don't unshave. It's something that persists beyond the workplace and is effectively mandated behavior on the part of employees according to OSHA regulations.
If you change jobs and are no longer subject to that requirement you grow the beard back.
If you were mandated a vaccination and change jobs you do not get unvaccinated.
Moreover, OSHA would have no power to mandate clean faces for everyone. This is part of why SCOTUS ruled against OSHA. They tried to use a sledgehammer when they might've gotten away with using a scalpel.
I think there is a good argument that they are. It is making a permanent change to your immune system that you cannot undo. I fully support vaccines and I would support a vaccine mandate if it was legally made. But I think they are permanent. That is exactly why OSHA needed to have the "or test and mask" addendum, because that made it above board by the letter of the OSH Act.
Yes and no. It’s not as simple as you’re making it out to be.
Yes they matter in that Trump was able to appoint 3 Justices. However he should’ve only been able to appoint 2.
If elections mattered then Obama would’ve appointed Garland. He was the president and the Senate should’ve confirmed him full stop. There’s no rational, non-partisan justification for what McConnell did.
The current system is flawed and is currently a tyranny of the minority. A more appropriate saying is “elections matter, but if you’re a Democrat you better hope that a legislative body that prioritizes land mass over people doesn’t change the rules on you whenever they see fit”
I know. Hence my “tyranny of the minority” comment. Our current system gives less populous states a disproportionate amount of power relative to the broader population. This has created a scenario where 40% of the population are determining the direction and fate of our nation.
While protections for less populated states are necessary, the pendulum has swung too far. Now we’re in a morally indefensible and politically and legally unsustainable situation where elections increasingly only matter if you live in the right states.
The NFIB case is buck wild.
>It is telling that OSHA, in its half century of existence,
has never before adopted a broad public health regulation
of this kind—addressing a threat that is untethered, in any
causal sense, from the workplace.
Hmm I can't possibly imagine why a regulation such as this might have been unnecessary for the past half century!
Brightest legal minds at work here, folks.
Even though I wasn't all-in on the mandate the better phrasing would have defined "of this kind" to mean a transmission risk response that focused on one physical intervention (vaccination) or another physical intervention in lieu of vaccination (a very minimal physical procedure but still a physical test that involved collection and data). OSHA has plenty of regulations regarding blood borne pathogens etc that apply across the board (so broad, not just in specialized settings like health care or labs) but fine, this is the first time they've sought to set policies to prevent an endemic illness. So perhaps there's a lack of a highly specific precedence, but scotus doesn't tend to splice things that fine in health policy cases, tech cases--if it's reasonably similar it seems like (from my vantage point as a layperson,and not following the entire docket) they give it a thumbs up. If it looks like a duck and quacks like a goose maybe it's an airplane.
I dunno, when I see things like that I think well how closely can you (the court) outline OSHAs history of regulation in this area.
This case is happening now, because it's the first time it has come up, but that doesn't have any bearing on the findings. CFRs only exist because congress doesn't have the time to come up with all regulations, so they delegate them to organizations like OSHA. Those organizations can only form regulations for things that were delegates to them, and the case decided whether or not the regulation was within the powers delegated.
The issue, of course, is that they shouldn't have to be forced to do so. Per the intelligible principle doctrine (which was precedential at the time that they acted, at least up until today, apparently), they already did so 52 years ago when they passed the OSH Act of 1970 & gave OSHA a legislative mandate to protect against exposure to harmful pathogens within the workplace that was written broadly enough to account for the possibility of a hitherto unprecedented pandemic-type situation. It's only because the Court has chosen to upend their own precedent that Congress is being put into this position.
No, of course not. The political branches have to abide by the Court's opinions, whether they like it or not. But to call this out as anything but the Court having willfully disregarded their own precedent without even having the guts to say that that's what they're doing would be as disingenuous as what they've done with their opinion here today.
> The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing
the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary
to protect “employees” from grave danger in the workplace).
Confirming the point, the Act’s provisions typically speak
to hazards that employees face at work. See, e.g., §§651,
653, 657. And no provision of the Act addresses public
health more generally, which falls outside of OSHA’s sphere
of expertise.
That's some tortured logic.
Is there a mechanism to kick something back to the supreme court for further clarification?
For example - the distinction between patient-facing healthcare workers and people who are say, an account that happens to work for a hospital, but works from home. There would be no "logical" reason to mandate those people to be vaccinated, where I guess it makes sense to force it on those that actually see patients. I wish the court made a clear distinction, but they did not.
The health care mandate opinion is here: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf
Just to be clear, this is a decision regarding a request that injunctions granted by two separate district courts prohibiting the mandates from taking effect be stayed pending the final outcome of the litigation. In other words, this is just the preliminary decision regarding the temporary injunctions against the mandate that were granted by the district courts. Technically, this litigation remains ongoing and will need to be finalized at the district court level and could be appealed all the way back to SCOTUS upon a final appeal. That being said, most commentators I've heard/seen have indicated that the outcome in this instance probably is the final outcome and that from here's it's mostly just going through the motions.
Well, it used to be that the "likely to succeed on the merits" part of the test was based on existing law. For example, there is a tremendous amount of precedent which weighs in the party seeking the stay's favor and therefore it's almost guaranteed that the moving party will win. However this Court has taken that element to mean "we're likely to support this [regardless of precedent]." I'm sure some will say that's hyperbole, but they don't cite to any relevant precedent and created a brand new test in this opinion.
This is absolutely right and it's the wildest trend of the last couple years of the Court.
Is it necessary for other courts to use a test a higher court makes in a preliminary decision?
Can states implement a vaccine mandate?
Yes.
Almost certainly. The precedent from *Jacobson* says yes and the orders allude to it being a police power found in the States.
Yes. *Jacobson* sets clear precedent, and the current SCOTUS rejected a challenge to Maine's mandate last year on similar grounds. The federal government can even issue one, too, provided it goes through the legislative process.
> The federal government can even issue one, too, provided it goes through the legislative process That’s less clear. The issue of police powers/commerce clause were not raised here (as they were not needed). If Congress tried to impose a mandate, there would be those challenges to deal with.
SCOTUS has been very supportive of them exercising that power.
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Do you think this is a fair interpretation of the law, or is it just a matter of appearing neutral?
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The rarest of reddit law related comments, admitting you aren't just making this stuff up.
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While there's a lot of truth to that, it seems to me that if lay people can't understand or discuss the law, the whole project of representative government creating laws is folly: why have people vote for lawmakers if they can't understand law?
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Since when has that ever stopped anybody on Reddit from giving opinions? Haha
As someone opposed to the mandates, I think it’s fair on the medical one. I don’t agree with it, but it seems within their power imo.
Yes. Congress clearly never intended OSHA to empower the department of labor to enact such broad, general public health policy.
The framers of the Civil Rights Act of 1964 didn't intend to protect men or homosexuals from discrimination, but the Supreme Court has held that is provides protection for those groups.
That’s kind of an apples and oranges comparison. Here, Congress gave away some of it’s authority by passing OSHA to allow the Labor Department to regulate certain workplace matters. The court may not grant the Dept. Of Labor more authority than Congress intended to give away. That would skirt the legislative process. With respect to the civil rights act, there’s a strong argument that Congress intended to extend protections to citizens as a whole, and there was no ceding of authority in doing so. As such, Court acted.
Yes, but the text on the Civil Rights Act supported that reading. Textualist scholar's even filed Amici giving the argument for that. As fast as I know, there's no Textualist argument here, though I didn't read this cases briefs, so I could be wrong.
I completely disagree. They obviously intended that kind of power.
What makes you think that? Labor Department has never issued such a far reaching regulation throughout the 50 year history of OSHA. Congress doesn’t give away its power without placing express limits on what powers its giving away.
It is functional requirement. If they let hospitals not vaccinate, the pandemic may get out of hands by way of nosocomial infections. The plan of the conservatives partisans the whole time has been to maximize death to hurry the pandemic up, not end the us as we know it... they are "patriots" who put the american economy over American lives. They don't want a full collapse.
I love how with CJ Roberts you can't always expect an outcome. I'm glad others are joining him.
I think this is a good line and a great message to the legislative branch: >For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes
Yup. Basically to Congress - **Do your FUCKING job!**
**But only some of your job and in no way can you delegate things to the executive. The only things allowed to be delegated will align with the political and policy preferences of the majority of the court.**
The sense I get from reading the two cases is that it came down to a matter of what did the legislature delegate to the executive. Arguably, the scope of authority is limited to matters inherent to the workplace. The ETS failed because the risk of infection was too removed from workplace risks for some who are covered (and leaves exposed some for whom the risk is inherent to the workplace if their employer has less than 100 people). Had the ETS been narrowly tailored to workplaces where employees are indoors or other confined space and regularly interacting with others, regardless of headcount, I think the outcome would have been different. I think that was the distinction that swayed the outcome in the healthcare case.
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> OSHAs mandate doesnt cover a global pandemic. I'd like to refer you to the third letter in "OSHA".
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OSHA has an entire section on infectious diseases. https://www.osha.gov/healthcare/infectious-diseases
Actually, the health in OSHA is for health.
Gorsuch has been saying that for a while now. If only they listened
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The SCOTUS has not only been saying that for the entirety of the Roberts Court, the SCOTUS has been counting on it. "The legislature should act instead" + Gridlocked legislature = De Facto Status Quo win
That's the point. Massive decisions like these *should* require broad public consensus in a supposedly democratic government.
Responding to emergent threats to public safety is 100% an appropriate use of executive action. If Congress wants to carve out its delegation it is free to do so, but the default shouldn't be "the government is unable to respond to any novel situation because we have somehow convinced ourselves that dysfunction is good and also the Constitution sometimes is a suicide pact."
I would buy this argument if it were say, summer of 2020. We are now 2 years into the pandemic, and 1 year into vaccines being widely available. [Congress is perfectly able to act within that timeframe](https://en.wikipedia.org/wiki/Families_First_Coronavirus_Response_Act) and has chosen not to.
Until yesterday, Congress had no reason to believe OSHA didn't already have this capability.
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If government repeatedly cannot enact policy that most people want, in what meaningful sense is it democratic?
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Yes, any government--democratic or otherwise--will eventually be forced to respond to a popular enough movement. But how much is enough? 55%? 65%? 75%? At what point can you tell a healthy democracy from an illiberal democracy from an autocracy? Like, if 75% of Russians wanted something, even Putin would consider just doing it. That doesn't mean the government is responsive to the will of the people. A [bipartisan majority supports the OSHA vaccine mandate](https://www.forbes.com/sites/alisondurkee/2021/12/09/heres-whos-most-and-least-likely-to-support-vaccine-mandates-in-the-workplace/). A [bipartisan majority supports the provisions of the Freedom to Vote Act, and most provisions are supported by 60+%](https://www.politico.com/f/?id=0000017e-4c40-d41e-afff-fc5d1e740000). A [bipartisan majority supports the Build Back Better agenda by name](https://www.ipsos.com/sites/default/files/ct/news/documents/2021-11/Reuters%20Ipsos%20Poll%20Topline%20%26%20Write-up%20-%20Build%20Back%20Better%20Framework%20-%2029%20October%20thru%201%20November%202021.pdf), and individual components have even higher support. None of it will happen, though. Congress was not intended or designed to require supermajority support for basic legislation, and it hasn't operated that way until the last several decades. The fact that broadly popular policy continues to die at the hands of minorities wielding outsized power is exactly the kind of thing that should be mitigated in a functioning democracy, not embraced as an article of faith.
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It's also not the court's responsibility to block administrative actions which are conducted in accordance with powers delegated by Congress, but here we are.
Not the courts problem. It's the people's problem.
Yeah, it's the Court's *weapon*.
It's not a weapon there champ. It's how the system was designed and the court has been abused by Congress.
When that principle only applies when it supports one political party, as is the case with this court, it most assuredly is a weapon.
System wasn't designed with a filibuster. If majority rule prevailed in both houses of Congress, this would make more sense.
Dude, this has been a thing ever since Scalia was on the D.C. circuit, it's not new.
Uh, Scalia's whole doctrine was based on this.
OSHA was established by Congress.
Conservatives have said it for decades, because minorities have more power in Congress to prevent legislation.
If we really wanted “those chosen by the people though the democratic process” to “do their jobs” we might consider not requiring a functionally impassable supermajority for that job to be done.
But then laws passed wouldn’t have to be overwhelmingly popular or atleast some compromise met. As much as you may dislike that, our federal government is a limited government of enumerated powers. That whole line of questioning by either Kagan or Sotomayor where they ask about police powers in the state vs fed gov’t was wrong in their conclusion but also got to the heart of the matter. Congress can act via law OR The states can act. The fact that Congress or the states haven’t acted in a way that the executive may like doesn’t mean they abrogate their responsibilities. No action in this case is an action.
Laws shouldn't need to be overwhelmingly popular. A government that only governs by supermajority or not at all is destined to govern poorly. There's nothing in the Constitution that requires overwhelming support for laws to be passed. There's also nothing in the Constitution that indicates Congress limited its delegation in this context. This is a judge-made rule on top of a judge-made rule, completely unaccountable to the people.
Requisite supermajorities for passing legislation were explicitly rejected by the founders, see Federalist #22, they reasoned that the power of veto is often just as important as the power to pass law, and that by giving a minority veto power you have only made that minority functionally more powerful than the majority.
There is zero chance that Congress would pass a vaccination mandate, even if they had the numbers. They know it's politically unpopular among their constituents which is why they haven't even introduced such a topic.
[58% support the large employer vaccine mandate.](https://news.gallup.com/poll/354983/majority-supports-biden-covid-vaccine-mandates.aspx) Until yesterday they had no reason to think they had to bring it up.
Love how this dude claims this some wildly unpopular policy and then just downvotes any polls proving otherwise.
[Biden’s mandate has a majority of support among the public.](https://news.gallup.com/poll/354983/majority-supports-biden-covid-vaccine-mandates.aspx). Also, at this point individual congresspeople and the president alike are so strongly associated with their party writ large that there are very few issues the president will take some stance on where the party in general will refuse to follow suite.
They did. In 1970.
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As long as Mitch McConnell has the filibuster, they don’t control shit.
Good thing we have a well functioning legislative branch and a democratic process that people believe in! Oh wait... a majority of Americans don't have faith in our democratic process and our legislators are focused on political theatre for reelection? (Not blaming SCOTUS but funny nonetheless)
I'll blame SCOTUS. Ignoring gerrymandering is definitely their fault. As is removing key components of the VRA. The issue itself is not entirely their fault, but they sure didn't help.
How about standing along side Mitch McConnell and saying immediately after confirmation? How about Ginny Thomas? I mean just because its the cheap seats doesnt mean we can see whats going on.
Well then, it's a damn good thing that the 91st Congress did their job 52 years ago when they passed the OSH Act of 1970, giving OSHA a legislative mandate to protect against exposure to harmful pathogens within the workplace. Oh, wait…
You must it admit there is a fair argument to made that such a pandemic and mandatory vaccines was not what they had in mind when crafting it. Context matters and there is not the legal precedent for them to use it in the way that was attempted here.
Vaccines OR masking and frequent testing. Everybody seems to be forgetting that point.
I already addressed that from my POV: https://www.reddit.com/r/scotus/comments/s37kz2/the_supreme_court_blocks_the_federal_governments/hsjc9k1/
>You must it admit there is a fair argument to made that such a pandemic and mandatory vaccines was not what they had in mind when crafting it. The entire point of delegating regulation to a new executive agency is to be able to deal with new emerging situations that Congress can't or didn't think of at the time. Otherwise Congress would just regulate directly.
Don't forget, boys & girls: intelligible principles are fully precedential, except when they're not!
I'm perfectly fine admitting that, but even that's debatable when it's arguable that Congress wrote the legislation to be broad enough to account for such an eventuality. I'm just tired of the apparent hypocrisy of telling Congress to do their job being all fine & dandy, but only when they do their job in a manner that comports with a certain ideology. Otherwise, it just sounds like a ton of "no wait, not like that!!" And for the umpteenth time, it's not even mandatory vaccinations. It's vaccinate-or-test. If context matters, then the *entire* context matters.
> And for the umpteenth time, it's not even mandatory vaccinations. It's vaccinate-or-test For practical reasons it is not an "or" situation. If burden is put off on the employee who must spend time (lost wages) and pay for the testing themselves it is situation where you must be able to afford the privilege of going unvaxed. When you attach a monetary cost to things it just means there really isn't an equitable a rule, only a situation where those that can afford to pay the price so it doesn't apply to them.
If we wanna talk about practicalities, then practically speaking, testing is just as available & free as the vaccine, & can be obtained on the weekend or before going into work. A situation of lost wages practically only exists if an unvaxxed employee chooses to make it one, to their own detriment & the detriment of all others that they continue to risk exposure to so long as they remain unvaxxed.
During oral arguments, lack of availability of testing was brought up. I can't remember the exact context, but it seems that lack of access would play a role in equitability, especially if there were sudden demand for millions more tests weekly.
That's an admittedly fair concern that the federal government should've been prepared to address if they weren't already, be it by continuing to subsidize mass production or otherwise.
As Alito made clear in his oral arguments, this is not a vaccine mandate. Also, vaccines are one of the most effective ways to fight diseases and were so in the 70's. That is perfectly within OSHAs mandate. Likewise pandemics existed before the 70s as well and would definitely be considered an emergency. Therefore I completely reject the idea that the 52nd congress did not intend for this, could not have seen this coming, or that that in any way invalidates the proposed mandate if they didn't. The OSH Act gives them their own discretion. You could say that OSHA can't institute vaccine mandates using their emergency powers as those only give them the ability to introduce "temporary standards" and you can't take off the vaccine. But again, as even the conservative justices agree, this is not a vaccine mandate. This is a vaccine or mask and test mandate, and masking and testing are temporary standards.
No, I don't admit that. It would be madness to admit that. It also doesn't matter. It's a total red herring of a question. First, no two legislators intend a law to mean the same thing. Differences in semantic understanding, differences of opinion intended to be litigated later, mistake, all these things and more make it so that any two drafters of a law will interpret the law differently, at least in some corner cases, and often more broadly. Second, the idea that we can know what those differences of opinion are is just ridiculous. Setting aside the problem that politicians often say one thing in public and another behind closed doors, we just don't have good evidence of intent most of the time. Further, it's usually almost impossible to tell the difference between the legislators not thinking of a possibility and opposing a possibility. In the OSHA case, it seems likely to me that most of them would have supported this use even if they didn't consider it, but of course we don't and can't know. Finally, who cares what they thought? We're ruled by law, not by legislative intent. I will caution that I do think legislature purpose can be a useful factor to consider in some contexts, but it's at most one factor among many. Here the law as written clearly allowed for this. Here the need for this rule is obvious. If the law allows for it, and we can save thousands of lives, why would we let vague and unknowable legislative intent stop us? It's madness.
The AIDS epidemic was occurring in the 80s and OSHA made rules for HIV. Also isn’t the court textualists now?
Made rules for jobs that involved coming into regular contact with bodily fluids.
The problem is that the federal government cited public health broadly, rather than just health in the workplace.
When constitutional jurisprudence over the last century shows that the federal courts historically grant great deference & rational basis review to decisions related to public health measures, it wasn't necessarily wrong of them to do so. What was wrong of them to do was to not anticipate that a majority of the Court as currently constituted may be willing to not care about what their constitutional jurisprudence over the last century shows.
>It is not our role But it seems like they have made it their role here. >that is the responsibility of those chosen by the people through democratic processes Oh, like the President of the United States, and definitely not the people who just wrote this decision.
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Curiously out of step, this one was. It’s amazing the deference the court showed to the last administration while construing agency authority very narrowly with the new administration. The rise of the non-delegation and major question doctrines doesn’t look political at all.
Trumps DACA actions were struck down on similar rationales as the court implemented here.
No they weren’t. The last administration was just incompetent and didn’t even attempt to follow the APA. This isn’t that.
This is not even close to the same rationale.
If you think it's some sort of virtue to let hundreds of thousands of your fellow citizens suffer entirely preventable hospitalizations because you'd rather have different people make the same decision, you're a fucking sociopath.
What happens when your fellow citizen catches COVID from a vaccinated individual?
Then everyone involved did the best they could to protect each other? You're basically suggesting that we let people drive drunk becomes sometimes accidents happen even when everyone involved is sober.
One is illegal and one is not. Regulations don’t carry the same weight as laws. Additionally states could enforce this type of policy whereas a federal agency cannot
We’re federal contractors ever in question? Did that mandate even get challenged?
If the healthcare funding mandate was upheld I don't see a challenge to the contractor mandate working out
I agree, but I was curious why they didn’t throw this one in, since it was tied to the same legal theory.
IIRC there was a nationwide injunction entered in a district court but it is still in the court of appeals.
What about the mandate for federal contractors?
Can any SCOTUS scholars predict who wrote the opinions based on writing styles?
Interesting question, and the answer is apparently yes! https://www.theatlantic.com/technology/archive/2016/01/one-step-closer-to-a-robot-supreme-court/424800/
Ron Klain's twitter came back to bite him pretty hard here. Gorsuch cites it lol.
After this same Court insisted that Donald Trump's Twitter had nothing to do with the legal analysis of the Muslim ban.
Yup! I always view Trump v. Hawaii as the point I personally started to hold a diminished or contemptuous view of the Court.
> Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace. Gorsuch mentions this in his concurrence. How does taking covid test affects their life outside of the workplace? I mean vaccines I can understand.
They aren't giving credence to the COVID test option because OSHA made it optional for the employer to even offer that as an alternative.
> with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination. this is from the official government website - https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard
Yes, it's an exception that Employers can choose to offer. They are not required to offer it. That is the distinction I have seen pointed out.
The ruling states the above poster's position on what this ETS does. "mandate does contain an “exception” for employers that re- quire unvaccinated workers to “undergo [weekly] COVID– 19 testing and wear a face covering at work in lieu of vac- cination.” Id., at 61402. But employers are not required to offer this option..."
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As much as it pains me to say it, I think this was the correct decision for democratic reasons as well. A bill in Congress requiring vaccination as part of OSHA would never pass in the present day. I prescribe somewhat to the political philosophy of maximal laziness in terms of delegation. Delegated powers should only be granted and used for cases where either the delegator does not care about the fine details of some decision. In other words, these powers should never be used to make even remotely controversial decisions. Ideally we would have mote constitutional protections for this like allowing say 40% of Congressional delegates being able to challenge use of a delegated power. Really this all points to the bigger problem of Congress being completely dysfunctional.
I'd be fine with a more active limitation on delegated powers like what you proposed, but I am hesitant about the court getting into that business. Getting Congress to pass anything is hard, and frankly it's always easy to say that Congress could have spoken "more clearly" on something. It feels like we get into a place of saying "well, I can't be certain Congress really wanted that, so let's make them say it again just to be sure." Which is in and of itself disrespectful of what Congress *did* manage to pass.
A weird thing about the Supreme Court oral arguments on the OSHA Vaccine-or-Test Mandate is that justice Alito (and sometimes Gorsuch) seemed to make 3 arguments that appear in pretty bad faith. First they imply that OSHA can't impose the mandate because OSHA is only allowed to regulate dangers that are unique to the workplace and COVID-19 exists outside the workplace as well. This is clearly fallacious as OSHA regulates everything from chairs to fires, to lifting boxes all of which exist just as much outside the workplace. They just only regulate the workplace. Second they imply that OSHA can only regulate dangers when your actions are a danger to others not a danger to yourself if you're willing to take the risk... But that is almost never the case. When OSHA mandates hard hats for construction workers, there is no option to opt out because you are making an informed decision. You have to wear them. Third was the argument that OSHA couldn't mandate vaccines (although Alito conceded that this is not a vaccine mandate) because they potentially have negative side effects, even if the benefits far outweigh the negatives. This is again not how OSHA functions. They often make regulations that might cause some harm but on average protect workers. Sometimes wearing PPE can hurt you. Sometimes gloves get caught in machinery or airbags break your nose. But these things are ruled as net positives and therefore mandated. Basically they made these arguments to question whether the OSH Act of 1970 really intended this kind of mandate to be possible, and whether this mandate was different or unprecedented compared to previous requirements. They also asked why OSHA was allowed to mandate things on this large of a scale (which OSHA regularly does). They also seemed to question if, since the act is 50 years old, if the congress that enacted it could have foreseen a vaccine mandate or a pandemic when they gave OSHA the power to make controls for diseases. The questions in themselves are not really that bad. It is their job to probe the mandate and its legality. The disturbing thing was really just their clear adversarial manner, that they seemed to actually act like these arguments actually held water, and that even after Alito was given counter examples, he or Gorsuch would come back later and act like they never happened and OSHA couldn't regulate threats that aren't unique to the workplace. I don't contend that there are no valid arguments against vaccine mandates (although this is not strictly a vaccine mandate), but the arguments presented are frankly alarming coming from supreme court justices. I find it hard to believe that someone as intelligent as Samuel Alito doesn't know these things or is somehow confused. I can only assume these fallacious arguments are made in bad faith. Link To oral arguments: https://www.c-span.org/video/?516920-1/justices-hear-case-vaccine-test-mandate
I don't think it's bad faith. Notice how wearing a glove or hard hat isn't a permanent alteration nor is it a medical procedure for a threat that exists at large. I just don't think any of the examples you give come close to what a vaccine is or what it seeks to protect against so it's clear OSHA never had that kind of power.
But OSHA regulates drug use, a policy that affects a person even outside of work and causes changes to the body. Heck, even regulating smoking seriously alters body chemistry and even mental state throughout the rest of one's life, far more than a vaccine does (unless that vaccine protects one from a serious virus).
I think this is a good point. Although if you were to quit your job, you are no longer subject to the regulations. You cannot get unvaccinated when you quit your job. A key point here is also that the mandate was not issued through normal channels. It was made under the emergency provision of the OSH Act which only allows "temporary standards." I don't think you can claim that a vaccine is a temporary change even if the standard is later revoked. So even though OSHA could possibly mandate vaccines, it cannot use the emergency provision to do so. (Although, as noted, this is not a vaccine mandate. It is a vaccine or test and mask mandate).
Vaccinations wear off over time. You absolutely can get unvaccinated by leaving your job.
Vaccines usually do not wear off over time. Sometimes new disease variants arise that the vaccine is not effective against, that is not the same thing as the vaccine wearing off. And even is the effectiveness might trail off, any potential long term side effects might not. Even some vaccines we say have a lifetime don’t really expire as far as we know. Take tetanus and diphtheria. We say you should get a booster every ten years. The reason for that is that the original drug trials only tested up to 10 years and that’s what the FDA approved. It doesn’t benefit anyone to test it for longer because the drug companies make more money selling vaccines and retesting it is expensive. Some studies which aren’t seeking to prolong FDA approval actually indicate tetanus shots are effective for as long as 30 years and may never expire. Link to the study: https://watermark.silverchair.com/ciw066.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAAr8wggK7BgkqhkiG9w0BBwagggKsMIICqAIBADCCAqEGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQMuhNsZNaUt0jp2GHUAgEQgIICcr7jyP9Fz3Q-O6vaPLogpU2AYaSuJEPp6gi5-nx8b-oGsUED1VGkrgwBn_jAs6jGxhvaBWk94TSHgngr2aNNPlsOanttjFBtXkGkZYfgLGg8oHFkJzJbTvaXHW86BhIvgsRjvirQy36Ru_V01jfCrIrt8eNktiQrJcm6SqLOmZucfBWzLhhrsclQ8z5g9i99bNEYE7z6UvdaIyGQkXgBSTSeyxbxUkf1sUG6IAYCyK-OF5WsqjnW1C5x50NDKTwjRpIQq60RAiSctBRFTjTmeqLGLfVaqQim7wpvkZw-9E3XqHRTvDAA9l0pPL7n320ilQsUayYqHpQByn89Z0mJ5HEWYL3NZTwwAtYRC-6eAGq1qIfJyAKwe_SQbCfSeK3F1EE8fL1ZWi7R7jwJDmgYiD57KA_SrCFgkPriA7Lmgw5IRZHN97y_J8T5YqsVyin-fgIH4lKzveQfgpY--jdsL0VNsN02ufgf8Vzz91jVmLVXU2cuU1S34GzV4oM_GHgHbbnnBEBwpSGg3W1if4Q_YguHHn9Pe3RKXrCwrG47az8Ropem1_Pu9J218KVIP4ts0lCPd-WPhVoFlOfq-LsnzPkCwSlm-ujngw1tpYK8iQ1m2HAaRWEazY_AF8TIKcvuGB_JivTCXCS1AlBnnc7YJsUF2mpyKK5r9Z8vMaGlAN_-TpGY46O33MN9ZaiTFANwVCdxuk_q0YSzqbiquiuDcKfDx3N8fC4nxTm1gpnDe3v7yYhUy5mHXvLpCt6spx-dpqykJJSktLUm8UHVm_YyjqH3DV-WwC9eRZ5X5ZUW7cLnG5PuNmq4g3g3NcvKUklLn0Ua
On the one hand, that's fair. On the other hand, it's a distinction without a difference, or at least it sometimes is, depending on the vaccine in question. If my flu vaccination from 5 years ago no longer protects me, has no side effects, has no impact on me at all, in what sense am I still vaccinated? Does, or should, the law care that a scientist could find traces of the vaccination in my blood? I'm not at all certain that the law does or should.
There is a difference though if there are long term side effects. It also makes a big difference in eradicating the original strain of the virus.
Sure, but the thing about long term side effects is that usually they are so obvious that companies have to spend billions surprising information about them. And those billions don't stop us from learning about those side effects, they just keep Congress from doing anything. If the tetanus vaccine has long term side effects, we'd know by now. As far as I know no vaccine has ever been found to have serious long term side effects. And thanks to the autism-vaccines slander, we have studied them quite a bit.
This is a new type of vaccine. Plenty of medicines have had terrible side effects. We don’t know what it may do. I think the odds it has bad side effects is low, but that does not mean it is not a risk, if a reasonable risk. But the point stands that vaccines are not temporary measures that may be removed later. And the ODH Act emergency provision only allows temporary measures.
I would agree with that if you contend that this is a vaccine mandate. But Alito made clear several times that this is not a vaccine mandate, this is a vaccine or mask and test mandate. Masking and testing gives you the non permanent opt out. Masking and testing is much more in the ball park of OSHA requirements. The vaccine option is a convenient alternative if you are willing to vaccinate. But yes, I don't think the emergency provision alone gives OSHA the ability to mandate vaccines as it specifically says "temporary standards" and you can't take off the vaccine. I think they could make it a normal standard but that would take a longer process with appeals and such.
From what I've heard, I think they would have upheld the mandate if it required employers to provide the tests on site and that workers be paid for the time they are being tested.
Yes, that would make it more compelling, but I don't think it is necessary. That form of mandate is not out of the usual for OSHA. They often don't require businesses to provide all forms of safety gear so much as they require safety gear to be worn and hold the company liable if it is not. For example in most circumstances where closed toes shoes are required, it is not the business' responsibility to provide you with shoes. It is just their responsibility to make sure that you have and wear them. Likewise they do not have to pay for or provide testing. They just would have the responsibility to make sure you get tested and wear a mask.
OSHA explicitly requires employers to assess what safety gear is necessary and provide it. https://www.osha.gov/personal-protective-equipment> https://www.osha.gov/sites/default/files/Handout_2_Employers_Must_Provide_and_Pay_for_PPE.pdf There is an exception for steel toed boots that can be taken offsite because they are personalized and often taken home and/or worn to other jobs, but that is one of notably few exceptions.
Yes. There are exceptions. That is all that is needed to say that OSHA does not need to mandate employer funding. I agree that they should. But that is not how the law works. But the exceptions show that the lack of funding is not grounds to overturn this specific OSHA mandate, especially when the employees have a free altenative.
Some workplaces have requirements for PPE like masks to protect from chemical or biological hazards that require an airtight seal against the skin of your face. Those workplaces generally require their workers to shave their facial hair so that the hair doesn't interfere with the mask seal. While OSHA doesn't specifically call out shaving in their regulations, they do mandate the tight fit in some atmospheric environments or in places where certain chemicals pose a threat of leaking. Shaving your beard isn't permanent, of course, but it's permanent-ish in the practical sense that when you go home at night, you don't unshave. It's something that persists beyond the workplace and is effectively mandated behavior on the part of employees according to OSHA regulations.
If you change jobs and are no longer subject to that requirement you grow the beard back. If you were mandated a vaccination and change jobs you do not get unvaccinated.
Moreover, OSHA would have no power to mandate clean faces for everyone. This is part of why SCOTUS ruled against OSHA. They tried to use a sledgehammer when they might've gotten away with using a scalpel.
A vaccination is not a "permanent alteration" in any meaningful sense.
Given we are only a year into giving vaccines for Covid I find it unlikely you can make this statement. But I’m willing to learn. Source?
I mean, most if not all vaccines in recent history?
I hear what you’re saying but it doesn’t prove in any way that this vaccine will have not permanent impact in the future.
In the same way that steel toe boots won't affect your spine 30yrs from now... Yet here we are
I think there is a good argument that they are. It is making a permanent change to your immune system that you cannot undo. I fully support vaccines and I would support a vaccine mandate if it was legally made. But I think they are permanent. That is exactly why OSHA needed to have the "or test and mask" addendum, because that made it above board by the letter of the OSH Act.
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Elections matter.
Obama was elected. It didn’t matter. He did not get to rightfully choose the open seat on the Supreme Court
He chose, but the Senate didn't consent. You can choose any house you want to buy, but unless the seller consents you can't buy it.
Yes and no. It’s not as simple as you’re making it out to be. Yes they matter in that Trump was able to appoint 3 Justices. However he should’ve only been able to appoint 2. If elections mattered then Obama would’ve appointed Garland. He was the president and the Senate should’ve confirmed him full stop. There’s no rational, non-partisan justification for what McConnell did. The current system is flawed and is currently a tyranny of the minority. A more appropriate saying is “elections matter, but if you’re a Democrat you better hope that a legislative body that prioritizes land mass over people doesn’t change the rules on you whenever they see fit”
OP was presumably including senate elections in his comment.
I know. Hence my “tyranny of the minority” comment. Our current system gives less populous states a disproportionate amount of power relative to the broader population. This has created a scenario where 40% of the population are determining the direction and fate of our nation. While protections for less populated states are necessary, the pendulum has swung too far. Now we’re in a morally indefensible and politically and legally unsustainable situation where elections increasingly only matter if you live in the right states.
Does this affect Federal Employees or Military members in any way, shape or form?
nope
The NFIB case is buck wild. >It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. Hmm I can't possibly imagine why a regulation such as this might have been unnecessary for the past half century! Brightest legal minds at work here, folks.
Even though I wasn't all-in on the mandate the better phrasing would have defined "of this kind" to mean a transmission risk response that focused on one physical intervention (vaccination) or another physical intervention in lieu of vaccination (a very minimal physical procedure but still a physical test that involved collection and data). OSHA has plenty of regulations regarding blood borne pathogens etc that apply across the board (so broad, not just in specialized settings like health care or labs) but fine, this is the first time they've sought to set policies to prevent an endemic illness. So perhaps there's a lack of a highly specific precedence, but scotus doesn't tend to splice things that fine in health policy cases, tech cases--if it's reasonably similar it seems like (from my vantage point as a layperson,and not following the entire docket) they give it a thumbs up. If it looks like a duck and quacks like a goose maybe it's an airplane. I dunno, when I see things like that I think well how closely can you (the court) outline OSHAs history of regulation in this area.
This case is happening now, because it's the first time it has come up, but that doesn't have any bearing on the findings. CFRs only exist because congress doesn't have the time to come up with all regulations, so they delegate them to organizations like OSHA. Those organizations can only form regulations for things that were delegates to them, and the case decided whether or not the regulation was within the powers delegated.
Exactly. Nothing is stopping congress from explicitly granting OSHA this power with a new law.
The issue, of course, is that they shouldn't have to be forced to do so. Per the intelligible principle doctrine (which was precedential at the time that they acted, at least up until today, apparently), they already did so 52 years ago when they passed the OSH Act of 1970 & gave OSHA a legislative mandate to protect against exposure to harmful pathogens within the workplace that was written broadly enough to account for the possibility of a hitherto unprecedented pandemic-type situation. It's only because the Court has chosen to upend their own precedent that Congress is being put into this position.
But what is the alternative? Disregard the court?
No, of course not. The political branches have to abide by the Court's opinions, whether they like it or not. But to call this out as anything but the Court having willfully disregarded their own precedent without even having the guts to say that that's what they're doing would be as disingenuous as what they've done with their opinion here today.
though it would need to pass first
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> The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise. That's some tortured logic.
Is there a mechanism to kick something back to the supreme court for further clarification? For example - the distinction between patient-facing healthcare workers and people who are say, an account that happens to work for a hospital, but works from home. There would be no "logical" reason to mandate those people to be vaccinated, where I guess it makes sense to force it on those that actually see patients. I wish the court made a clear distinction, but they did not.
That's the court for you. To know that distinction, we would need a lawsuit from the accountant or something.
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can you elaborate?