The Supreme Court rebuked the Biden Administration’s vaccine mandates with one hand on Thursday but gave it a pass on the other. The split decision counts as a welcome setback for an overreaching administrative state, but not as welcome as it might have been.
In the more important decision, a 6-3 majority blocked the Occupational Health and Safety Administration’s sweeping mandate covering some 84 million employees of large employers. In an unsigned opinion, the Court said OSHA exceeded its statutory authority. And it has never adopted a “broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
…..
The disappointment was the Court’s 5-4 decision upholding the mandate on 10 million health-care workers. The Chief and Justice Brett Kavanaugh joined the liberals in ruling that the Centers for Medicare and Medicaid Services did have proper legislative authority.CMS found broad latitude to regulate healthcare providers when “necessary in the interest of the health and safety of individuals who are furnished services.” But that judgment was taken to task in a sharp dissent by Justice Clarence Thomas, joined by Justice Gorsuch and Justices Samuel Alito and Amy Coney Barrett.
The government “fell back on a constellation of statutory provisions that each concern one of the 15 types of medical facilities that the rule covers,” Justice Thomas writes. “The majority, too, treats these scattered provisions as a singular (and unqualified) delegation to the Secretary to adopt health and safety regulations.”
We think the dissenters have the better reading of the healthcare law, but at least the CMS statute has some relation to the health regulation it imposed. Had the Court blessed OSHA’s mandate on private employers, the message to regulators would have been that they can do whatever they want as long as they call it an emergency.
Rather, the reason why the “indiscriminate” nature of the OSHA mandate dooms the mandate is that many of the workers covered don’t actually face a “grave danger,” as required by the ETS statute. This is especially true, given that they could easily mitigate any danger simply by getting vaccinated voluntarily (the government concedes that OSHA found a “grave danger” to exist only for unvaccinated workers).
In a concurring opinion joined by two other justices (Thomas and Alito), Justice Neil Gorsuch argues that the OSHA mandate also violates the nondelegation doctrine. I agree with much of his argument.
Also writing on yesterday’s ruling is Reason‘s Eric Boehm. A slice:
In the end, the five-month saga of Biden’s private-employer vaccine mandate highlighted just about all of the major problems with how the federal government operates these days. Here was a major policy change implemented not by the legitimate legislative authority (Congress) but by the executive branch, which increasingly sees its authority as covering anything that’s not been explicitly forbidden. Congress then stood by and waited for the Supreme Court to invalidate the order, effectively forcing nine legal scholars to do its job.
The outcome is the right one—Biden’s order [through OSHA] was a breathtaking overreach of federal power into the affairs of private individuals and businesses—but this is, to paraphrase Kavanaugh, not how the everyday exercise of government should work.
And about the Court upholding the vaccine mandate that applies to health-care workers at facilities that receive funds from Medicare or Medicaid, Jay Bhattacharya tweets:
The US Supreme Court just guaranteed staff shortages in American hospitals for the foreseeable future. The vax does not halt transmission, so no marginal benefit to patients regarding covid risk either.
Quebec is now home to a sad and scary, but not surprising, outcome in a world gone hysterical with excessive fear of – and failure to understand – Covid. (DBx: There will soon be several economists justifying Quebec’s tax on the unvaccinated as being nothing more than an innocent, textbook-legitimate “Pigouvian tax” – a measure simply meant by a science-guided and apolitical government to “internalize” an “externality.” We’ll encounter such naive prattle as ‘The government there is simply bringing the marginal private costs of individual decisions into line with the marginal social costs of those decisions!’ The ability of so-called “welfare economics” to be so easily co-opted to justify tyranny should warn all sensible economists of the inherent intellectual weaknesses of – and ethical dangers in – mainstream welfare economics.)
To paraphrase el gato malo, who’d a-thunk it?
Noah Carl nicely summarizes much of the past two years:
When it comes to the pandemic, do the people in charge know what they’re doing? Or are they kind of making stuff up as they go along? Much evidence points to the latter. Of course, politicians and other government figures aren’t exactly known for their unwavering humility. (Rarely does the man of high office admit, “We got that one wrong.”) But the pandemic seems to have turbocharged this obliviousness to error.
That leaves us with courts’ other rationale for dismissing the prior lawsuits: Universities don’t promise applicants in-person learning. That is simply absurd. Online programs are marketed as such and generally cost less. University promotional literature emphasizes the in-person experience. Most important, in-person learning comports with reasonable expectations formed through campus visits and past educational experiences. Would anyone believe a university fulfilled its obligations if it switched to online learning to save on building costs? Mounting evidence shows that online learning generally underperforms in-person instruction at all levels of education.
If universities choose to go online under present circumstances, they are likely in breach of contract. Some schools with similar residential and online degree programs steeply discount their online offerings. Basic contract-law principles would require universities to refund students for the difference between standard and online tuition.
University of Chicago history professor Rachel Fulton Brown pens a letter to that university’s president and provost. (HT Jay Bhattacharya) A slice:
Some things you could do IMMEDIATELY:
1. MAKE PUBLIC that you have granted exemptions to those of us who refused to consent to being part of a giant experiment which from the beginning has been compromised by politics and haste.
2. MAKE PUBLIC which of our faculty were courageous enough to sign the Great Barrington Declaration and stand for SCIENTIFIC INQUIRY over POLITICAL GRANDSTANDING.
3. MAKE PUBLIC that we have students intelligent enough to see through the gaslighting and fear to the real questions we should be asking about what it means to be a great school.
Phil Magness writes at Facebook:
Q. In a just world, should Anthony Fauci be criminally prosecuted?
A. Yes, on at least two counts: (1) lying under oath to Congress and (2) public corruption, including intentional actions to conceal evidence that he misappropriated public resources on gain-of-function research.
He should also be terminated from his job and have his medical license suspended, both effective immediately, for rampant professional misconduct in using his government office to target and smear other scientists who challenged or disagreed with his policy positions.
Matt Ridley talks with Julia Hartley-Brewer about the origins of SARS-CoV-2.
Ian Miller and Michael Betrus ask: “Is masking kids at school working?”
TANSTAFPFC (There Ain’t No Such Thing As Free Protection From Covid.)
Sadly the art of government is not about making the net-best decisions for society, but avoiding a narrow variety of politically explosive scenarios. The most fearsome among them is a winter meltdown in the NHS, keenly covered by the press. As another reader, Beech More, wryly noted on my column, the mainstream media has “hit the mother lode with Covid”.
Telegraph columnist Allison Pearson rightly decries the hypocrisy of the Covidocracy. A slice:
It’s not just the hypocrisy that enrages me. All the people who attended that party in the Downing Street garden knew full well that Covid wasn’t the plague – not even close. They had access to all the data. They weren’t scared to attend a boozy party because they seemingly thought it wasn’t a risk for them. (It wasn’t a risk for the majority of us, certainly not for students or children.) Yet did they withhold that knowledge from the public? They continued to ramp up the propaganda to spread fear so that people would blindly obey the rules which some of them were cheerfully breaking.
Who remembers the John Snow memo? (The “experts” response to the Great Barrington Declaration)
Doesn’t seem to have aged well. pic.twitter.com/c13fyRRnPd
— James Todaro, MD (@JamesTodaroMD) January 10, 2022
