The Supreme Court has ruled, and we are saved from the “vaccine mandate.” But before you celebrate there’s some things that came out of this decision that are disturbing. Let’s dig in. First on page 7 of the decision the Court says OSHA can regulate “occupation-specific risks related to Covid-19.” It goes on to say a few sentences later that OSHA could also regulate businesses that have “…particularly crowded or cramped environments.” This could open the door to OSHA pushing the mandate on many other workplaces. Churches, schools and theatres are a few that come to mind.
Another point of reasoning that the court used to come to the majority’s decision was that OSHA lacked authority to so broadly create regulations. As OSHA’s Emergency Temporary Standard was written it broadly covered all workplaces that employed 100 employees or more and drew no distinction between a hospital environment or a tomato farm. This error brought up what the Major Questions Doctrine. Which is a legal theory that judges have used to block important regulatory initiatives. The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” To make a long story short, major issues are expected to be addressed by congress not delegated to agency.
Before we start looking at the dissent in this case another concern here is put forth by Justice Gorsuch who states, “There is no question that state and local authorities possess considerable power to regulate public health.” This means while OSHA does not have authority to deal with Covid, states have a lot of power to do so. I would expect liberal states to push vaccine mandates. And they will now do so with a sharpened argument having seen the missteps of the OSHA ETS case. While conservative states will likely leave the issue of getting vaccinated up to individuals. This also furthers my opinion about the US fracturing due to such fundamental differences between the states. I’ve written about this topic in the past, so I’ll digress.
So now let’s look at a couple things coming out of the dissent. I have to admit, after reading the majority’s decision, the dissent had some comical points. First comes the issue of “grave danger.” On page 2 of the dissenting opinion, they state that it is OSHA’s mission to ““protect employees” from “grave danger” …” Grave danger? Hard to believe something with a 99% survivability rate to be a grave danger. I mean, maybe grave danger if you’re a person resembling Jabba the Hut who is 80 years old with COPD. But outside of that, grave danger not so much.
Then the dissenters go on to say how the ETS allowed for exemptions. Wonder what the group of Navy Seals who sued the government to allow their religious exemption view that one. And as for the, people who work outdoors exemptions. Well, I guess the massive number of agricultural workers picking lettuce and tomatoes are exempt. Oh wait, a large number of those folks are illegal aliens anyway, we don’t enforce mandates on them anyway.
The final bit oh hilarity from the dissenters was the statement that, “…mask wearing, and vaccination are highly effective…” ways of controlling Covid-19. LMAO…I guess the US Navy warships which are manned by 100% vaccinated crews and still had Covid-19 outbreaks didn’t get the memo. Same with the private cruise lines who had 100% vaccinated crews and passengers yet still suffered major Covid outbreaks. And masks, don’t even get me started on the nonsense which is a cheap mask stopping a virus from escaping.
In the end this attempt by Biden to force his harebrained dictate upon us has failed. But, keep your guards up and your powder dry as they say. We probably haven’t heard the last of this issue. Because much like our Zombie in Chief, this may keep coming back.