Republican outcry grew and two Democrats joined as the Senate 52-48 voted to reject the OSHA Emergency Temorary Standard, a Rule mandating vaccination or testing for employers of 100 or more effective January 4. The Rule has been challenged in all 12 federal judicial circuits. The U.S. Court of Appeals for the 5th Circuit in New Orleans stayed the rule. A special panel of judges consolidated the many actions challenging the Emergency Temporary Standard. The Court literally held a Powerball-type lottery to determine which Circuit would decide the issue. The Sixth Circuit was selected randomly. That is good news for the opponents of the public health measure. The court has a 10-6 Republican majority reflecting its geography - Michigan, Ohio, Kentucky, and Tennessee.
The prospects for the OSHA regulation to stop the spread of Covid-19 and its variants such as the newest - Omicron. But though Trump-voting counties have persistently higher rates of illness and death. But the battle cry of freedom has overwhelmed the evolving public health cautions for many. Opposition to the vaccine mandate has become a rallying point for those whose mission is to defeat Democratic government.
The solid Republican bloc against the vaccine mandate drew Joe Manchin and Jon Tester - both from heavily pro-Trump rural thinly populated states m- West Virginia and Montana. It is a theatrical gesture since the Democratic majority of the House of Representatives will be loathe to embrace the measure and the President is certain to veto such a bill.
But the prospect in the courts for the OSHA measure is poor. As I noted back in September the Supreme Court's decision in Alabama Association of Realtors threatened the OSHA ETS. The conservative majority, ideologically hostile to the regulatory agencies has a virtual free hand. The Senate that adopted today's measure will not overturn even a statutory construction. But even if that were not certain the six conservative justices would have little difficulty finding an individual right wrongly taken by state action.
But, ironically, the court which is on the verge of reversing fifty years of personal liberty embedded via Roe v. Wade may find it difficult to settle on a single rationale to strike the Emergency Temporary Standard. Despite the Catholic majority on the court the `common good' doctrine seems to hold little sway on the high court. It will hardly do for the Court to deny the existence of an epochal global emergency - which has already taken 3/4 of a million lives in America.
The rationale deployed so far is to attack the statute. In Alabama Realtors the Court turned to Antonin Scalia for inspiration, saying "We expect Congress to speak clearly when authorizing an agency to exercise powers of “vast ‘economic and political significance.’” When facing a nearly stalemated Congress demanding more of Congress is in fact a dagger to the heart. The result will be the US continuing to face mounting deaths as the Republican Party and its allies continue to disparage the necessity of the single measure most likely to reduce illness and death from the novel corona viruses sweeping the globe: Vaccines.
- GWC
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