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Courts without law

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Neal Katyal, left, and Neil Gorsuch, right.

One thing worth emphasizing about the Supreme Court’s forthcoming decision to throw out the Biden administration’s workplace vaccine mandate, as Hannah Mullen observes, is that the statutory language authorizing unambiguously supports the administration’s actions:

The Biden administration’s authority to require basic public-health measures in the workplace is crystal-clear. In a statute passed in 1970, Congress required the Occupational Health and Safety Administration to issue an “emergency temporary standard” regulating workplace conditions when the agency determines that such a standard is “necessary” to protect employees from a “grave danger” resulting from exposure to “physically harmful” “new hazards.” The agency promulgated the vaccine-or-test rule last year after examining data and evidence on the dangers of COVID-19 in the workplace, and the efficacy of vaccines, masking, and testing. As it turns out, a contagious disease that has killed more than 800,000 Americans and is entering its third year counts as a “grave danger.”

That should be the end of the case: Congress authorized a particular category of agency action, and the agency reasonably invoked that power to regulate employers commensurate with the danger their employees face. But for the right-wing justices, when an agency takes action to address an especially important problem—for example, a deadly pandemic—an ordinary congressional grant of authority is not enough. Rather, Congress must have specifically anticipated that problem and explicitly authorized the agency to take that particular measure to address it.

The ambiguity here is not in the statute, but in the ad hoc doctrines reactionary judges have invented to allow them to overrule any executive action they don’t like on purely policy grounds:

At oral argument, the conservatives repeatedly invoked this expansive made-up rule, which is known in legal circles as the “major questions doctrine.” Roberts asked Solicitor General Elizabeth Prelogar, who argued in defense of the vaccine-or-test mandate, to confirm that mandating vaccine coverage is “something that the federal government has never done before.” He also remarked that he didn’t think that Congress “had COVID in mind” in 1970, when it passed the Occupational Safety and Health Act, and observed that 1970 “was almost closer to the Spanish Flu than it is to today’s problem.” The Chief Justice didn’t expand on why Congress’s inability to predict the onset of COVID-19 five decades ago is evidence that Congress wouldn’t have wanted the government empowered to do anything about it. 

This argument is incredibly inane. Of course Congress didn’t anticipate any particular novel crisis. The whole point of delegating emergency authority to the branch best positioned to respond in emergencies is that the scope of particular crises can’t be foreseen ex ante!

But one problem here is that because a majority of justices on the Court are Republicans, they don’t think the COVID pandemic is an emergency. And law office epidemiology is perhaps even worse than law office history:

Look, athlete’s foot kills millions of people every year, but has Biden mandated that employees use tough actin’ Tinactin? CHECKMATE LIBS! Neil Gorsuch is a person of the utmost Seriousity. Congratulations to every fancy liberal lawyer to testified on his behalf.

…it’s very simple. A “major” question involves something reactionaries think is not a legitimate function of government (like protecting people’s health), not something that is (like bombing brown people.)

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