Ilya Somin: Supreme Court Covid vaccine mandate hearing exposes Biden administration overreach
by Ilya Somin // NBC News
Perhaps most importantly, it is doubtful that Covid poses a “grave danger” to employees when the vast majority of them can easily minimize the risk by getting vaccinated voluntarily, thereby almost completely eliminating the threat of serious illness and death.In Friday’s oral argument, Biden administration Solicitor General Elizabeth Prelogar conceded that OSHA found that a “grave danger” exists only for unvaccinated workers. But if a “grave danger” that justifies the use of emergency authority exists even when workers could easily avoid it, OSHA would have near-boundless authority to use its emergency powers to control almost any workplace practice. Virtually any activity poses grave dangers to at least some people if none of them take even minimal precautions. For example, parking a car in the employee parking lot creates a grave danger for people who refuse to move out of the way when they see it coming.
George Mason University law professor Ilya Somin, a libertarian Cato Institute adjunct scholar, backs the conservative critique enunciated today by the conservatives on the United States Supreme Court. It appears that the majority (6-3) will strike the OSHA Emergency Temporary Standard mandating either testing or vaccination of employees at large companies.
The OSHA standard mandates vaccination or testing, and allows for religious exemption. The Department of Labor's authority is stated at 29 USC 655:
(c)Emergency temporary standards(1)The Secretary shall provide, without regard to the requirements of chapter 5 of title 5 [of the Administrative Procedure Act], for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.(emph. added)
Like the critics on the high court Somin finds that the premier legislative accomplishment of the labor movement in the past half century - the Occupational Safety and Health Administration [OSHA] does not have sufficient statutory support for the regulation which was adopted under a procedure that shortens the usual notice and comment process which takes a year or more to implement. The conservatives embrace a doctrine first enunciated by Antonin Scalia whose name is borne by Somin's law school. It was most recently enunciated by the high court when it voided the Department of Health and Human Services eviction moratorium standard in a challenge brought by the Alabama Association of Realtors.
The core idea is that when a government agency seeks to do something that will have a big impact it must have particular, not general statutory authorization. Thus the Court struck the moratorium, finding that the Surgeon General's authority was insufficiently supported by the Public Health Act 42 USC 264 which authorizes the Surgeon General - who answers to the Secretary, who answers to the President - "to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases".
Today, as in the Alabama case, Justices quibbled over what "necessary" means. The unaccustomed ear may be reminded of former President Clinton answering that a statement depended on "what the meaning of is is". But such hermeneutics are deadly serious to those who - like six members of the high court - are hostile to the administrative "deep state" which is the modern form of government.
As Steven Vladeck (UT Austin) recently described in The Imperial President's Enablers in Foreign Affairs there are two apparently contradictory but converging memes in conservative legal thought. The first is that the full executive power rests in the person of the President. That is the so-called "unitary executive" theory. But it operates in occasional tension with the "major question" and "non-delegation" doctrines which serve to constrain Congress.
These two judicially created themes work to limit the power of executive agencies. The major question doctrine asserts that Congress must speak with particular clarity if it is authorizes some action with broad societal impact. The non-delegation doctrine asserts - with scarce historical support as Nicholas Bagley and Julian Mortenson have demonstrated - that Congress improperly and unconstitutionally delegates its law making power by giving broad statutory grants of power to executive agencies.
Thus when the Supreme Court approves of Presidential action it embraces the unitary executive - as it did in permitting the Trump bans on immigration from Muslim countries in Trump v. Hawaii and a raft of immigration cases such as New York v. Department of Homeland Security staying a District Court order blocking the "public charge" rule which sought to make sure that the tired and poor would not land at the foot of the Statue of Liberty. But where the regulatory measure meets a less sympathetic court the non-delegation and major questions doctrines are deployed.
The net effect is strict judicial review of powers such as those of the Department of Labor and the Department of Health and Human Services, but a wide berth for measures such as the previous President took to stem immigration. The approach has been aptly categorized by Georgetown's Josh Chafetz as "judicial aggrandizement". The result is a free Presidential hand for military and law enforcement and a short administrative and Congressional leash for economic and public welfare measures.
Vladeck in his pre-argument MSNBC column concludes:
the real alternative to allowing agencies like OSHA and CMS to make these choices (with presidential backing) is not more democratically accountable regulation; it’s deregulation. And such deregulation would not be the result of a conscious choice by the democratically elected political branches; it would be the unavoidable, if not intended, consequence of rulings by the least accountable branch of them all — the judiciary.
- GWC
January 7, 2022
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