Headlines tell us that the Biden administration won a split decision from the Supreme Court this month when it rejected one of the president’s workplace vaccination mandates (for large employers) and in confirmed another (for healthcare workers).
But before you call it a tie and move on to the next crisis, it’s worth considering the opinions in more detail in one of the cases, NFIB vs. OSHA. They could tell us where this country is heading.
The six court-appointed Republican representatives agreed that regulating the spread of COVID in the workplace was beyond the scope of the Occupational Safety and Health Administration as it was conceived in the 1970s. expects Congress to “speak clearly when authorizing an agency to exercise powers of great economic and political significance,” and Congress has been silent on this issue at all.
If an agency with the word “health” in its name cannot respond to a public health emergency, then the logic of this advice threatens our ability to deal with other crises, especially climate change.
Anyone who has watched Congress in recent years knows that it is very difficult for them to “say” anything, clearly or not. Partisan politics and narrow majorities mean very little can be done. The last three presidents have resorted to executive action, but like President Biden’s mandate on vaccines, they have come up against a federal court system that has been groomed by the conservative legal movement to protect the interests business against any prejudice.
The last major environmental law passed by Congress was the Clean Air Act, in 1990. How will this Supreme Court view attempts by federal regulators to address climate change, an issue that was not well understood by most legislators 32 years ago?
We won’t have to wait long to find out.
Next month, the court will hear argument in a group of combined cases as West Virginia v. EPA, challenging the Obama administration’s Clean Power Plan. What are you saying ? Barack Obama is no longer president and the Clean Power Plan never came into effect?
You’re right, but the Supreme Court still took this case — even though the Biden administration repealed the regulatory regime – and it could indicate that at least some of the judges want to “speak clearly” on the subject.
What they might mean is found in a concurring opinion in the OSHA case, written by Judge Neil Gorsuch and joined by Judges Clarence Thomas and Samuel Alito.
The review begins, “The central question we face today is: who decides?”
Trick question: When it comes to abortion, the correct answer for these judges is “the government,” but we quickly find that Gorsuch is going in a different direction here.
He says it’s up to the courts to decide whether an agency specifically oversteps its powers, even in an emergency where thousands of people die every day. “This Court is not a public health authority,” writes Gorsuch. “But it is responsible for resolving disputes about which authorities have the power to make the laws that govern us under the Constitution and the laws of the land.”
In this case, says Gorsuch, that means state and local governments, including states like texas and Florida that have prevented local governments and businesses from instituting basic public health protections like mask requirements during a pandemic.
Since the New Deal, the federal government has relied on regulatory agencies, which issue rules that have the force of law. You can’t expect members of Congress to know how many parts per million of certain chemicals would be safe in public drinking water, but they can pass legislation allowing Environmental Protection Agency scientists to environment to discover it.
For most of that time, courts have deferred to the interpretation of agency experts if legislative language is vague. But there could now be a majority in this Supreme Court that would flip that balance and say that the justices, who never face the voters, can choose to overrule the experts’ decision if the specific question is not stated. clear enough for them.
You see where this leads.
An executive branch that can do nothing to protect the environment without specific authorization, while polluting companies can spend billions of dollars every year to ensure no laws are passed. It would be the same for the regulation of energy, banking, communications or health.
As the two democratic branches of the federal government fight on equal terms, the courts become the only branch of government that can do anything.
And this court seems to agree with that. Are you?