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Saturday, January 15, 2022

Concurring Opinion from Justices Gorsuch, Thomas, and Alito on Vaccine Mandate Decision

I posted yesterday about the Supreme Court's decision in National Federation of Business vs. the Department of Labor/OSHA. Today, let's take a look at the concurring decision written by Justice Gorsuch and joined by Justices Thomas and Alito. It's an interesting document that adds significantly to the reasoning behind the decision. First of all Gorsuch clearly identifies the constitutional rights and powers of the states vs. those of the federal government. It makes for interesting reading:

There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the “general power of governing,” including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government.

This is an important point and a reminder that the federal government has no right to make laws and exercise dictatorial mandates. Unfortunately, the states seldom flex their constitutional muscle because of the federal dollars. Money has been used as a carrot and a stick by many presidents to cajole and beat the states into line. But, under the constitution, the federal powers are limited:

The federal government’s powers, however, are not general but limited and divided. See McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance." ... OSHA’s mandate fails that doctrine’s test....Congress has nowhere clearly assigned so much power to OSHA....  Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation. 

Well, that is certainly clear enough! The justices go on to emphasize that OSHA is trying to regulate with no constitutional justification:

[not] just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace. Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers.

The federal government does not have the authority to take over issues that are state functions! The judges refer to the "major questions doctrine" which refers to issues that have broad and general impact: 

Why does the major questions doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress...designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.

Wow! Justices who recognize the right of the people to influence the laws under which we are governed! Radical thought! They quote Antonin Scalia's point that the major questions doctrine is designed to prevent “government by bureaucracy supplanting government by the people.”  The conclusion of these three justices on the case is that the states and Congress have the power to make laws and rules regarding health issues like the COVID pandemic not OSHA and the federal government. They make a strong case for respecting the separation of powers which has frequently been trampled upon by power-hungry presidents.


Dad29 said...

Too bad that Cryin' Kavanaugh didn't see exactly the same argument in the CMS (hospitals) case, eh? The CMS' entire argument hangs on one extremely broad and rather vague phrase.....

Gerry McKeegan said...

Overall this may be a huge setback for citizen privacy rights. Expect the CMS ruling to now extend to not only all health care workers but all health care practices and their Medicare/Medicaid patients and to Medicare/Medicaid patients in the hospital as well as their visitors. Disclosing your vaccination status will now potentially extend well beyond 84 million citizens. How fast do you expect HHS to start writing new rules covering Medicare/Medicaid patients?