This past Friday and over the weekend, I’ve seen a good deal of discussion surrounding how the Supreme Court is going to rule on the OSHA vaccine mandate for businesses with 100 or more employees. I keep getting school wide emails from my employers saying that vaccine mandates will be rapidly enforced if the Supreme Court rules in favor of the Biden mandate.
While I didn’t watch the oral arguments in the Supreme Court on Friday, I did read some transcripts detailing a few of the statements made and was disappointed with what I read.
Sotomayor claimed that, “Omicron is as deadly and causes as much serious disease in the unvaccinated as delta did…We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
What surprised me about this quote, as well as the many other quotes I read was this: these nine (presumably) Constitutional scholars were debating about the science and severity of a medical condition, and not the Constitutionality or scope of federal power.
The assumption that these nine people know how to handle this “pandemic”, based on medical arguments, is both severely flawed and dangerously arbitrary.
It’s critical to always start any analysis of government behavior by first looking at the assumptions such behavior is based upon. It’s both unhealthy and unwise to engage in arguments or even discussions about a topic based on flawed or false assumptions. By doing so, we then accept the false assumptions as true.
So, before I engage in any discussion or analysis about OSHA, The Supreme Court or the vaccine mandates, I must first clearly state the flawed assumptions many of these topics are based upon.
False assumption number one: The Supreme Court possess the Constitutional power to declare laws and action unconstitutional. Truth: It does not, and never has. It gave itself that power. For more on this, please read my article detailing the origins of judicial review.
False assumption number two: The Supreme Court possess the Constitutional power to write, re-write or introduce new law when declaring laws or actions unconstitutional. Truth: It does not. The courts, when using this arbitrary, undefined power of judicial review, cannot Constitutionally write or change existing law. The courts were created to apply existing law. When they took the power of judicial review, they could only declare government behavior Constitutional or unconstitutional and simply send the unconstitutional government action back to the guilty branch to fix for itself.
False assumption number three: Once the Supreme Court rules on something, there’s no other recourse. They are the final court of review and have the complete and argument-ending final say. Truth:This is NOT true. Since the Supreme Court never possessed the power of judicial review in the first place, it was never intended to act as the final arbiter and or justifier of all government power. The Court can declare unconstitutional government behavior constitutional all day and that does not make such behavior constitutional (i.e. declaring the forced interment of Japanese Americans constitutional did not make such action constitutional and the implementing agencies should have refused to enforce it). In fact, since the court does not possess any executive force to implement their rulings, their rulings have no legitimate power. The power the courts have lies solely in the belief in the power they have. They must rely exclusively on government agencies, branches and state governments to give life to their rulings. This means they have no way to enforce their rulings should the other branches, agencies and states simply say no.
False assumption number four: The president can mandate. Truth: There is no provision in the Constitution, whatsoever, that gives the president the power to mandate anything. He merely possess the power, via the Constitution, to execute existing laws written by the lawmaking branch–the branch most connected to the people. Please, go read my article on arbitrary power and the Constitution to understand why it’s of such critical importance for our government to follow the Constitution.
There are so many flawed assumptions surrounding and underpinning these issues–OSHA, Supreme Court, vaccine mandates–that I cannot begin to explain them all, but these are a few of the most important false assumptions of which to be aware. Please keep them in mind as I discuss the topics at hand.
Historical Context of OSHA
The Occupational Safety and Health Administration (OSHA) was first created under the OSH Act, passed in 1970 and signed by then President Nixon. It’s purpose? To both set and enforce workplace health and safety standards.
The government had been moving towards such an agency for years, starting with the first work place safety laws passed by a state, Massachusetts, in 1887 and the creation of the Department of Labor by President Taft in 1913. The Department of Labor was a direct outgrowth of heavy lobbying by workers for the federal government to step into the realm of labor and enforce better working conditions, hourly pay, overtime pay, unemployment insurance, and freedom from discrimination.
OSHA exists under the umbrella of the Department of Labor.
Constitutionally, both of these–The Department of Labor and OSHA–should not exist.
Now, my personal opinion on this matter is not influencing the statement that both of these entities are unconstitutional. Logically, I’m well aware that there is a need, at times, for the federal government to step in and protect individuals from the arbitrary abusive power of private companies that span more than one state. There were miserable working conditions in America prior to the Department of Labor and few, if any, Americans would volunteer to return to those times simply because the government was acting unconstitutionally.
The problem is that, because arbitrary government stepped in to stop arbitrary business, rather than Constitutional government stepping in to stop arbitrary business is this: since this government action was arbitrary, undefined and unconfined, it was and still is limitless. There is no statutory or Constitutional justification for limiting federal power in this labor realm now since the federal government gets the power to act in this realm from nowhere. This power just is and therefore the power can be interpreted and applied in any way.
Leading us to the situation facing Americans today.
(In order to avoid arbitrary power here, but still solve the issues prevalent in the workplace, a Constitutional amendment, changing government’s job description, could have been passed, setting clear, defined powers and limitations on government regarding their reach of power in this realm.)
Primary Functions of OSHA
The primary function OSHA? That’s the issue, it’s impossible to define.
Cass R. Runstein writes about this very issue in the Virginia Law Review. Here’s a good encapsulation of the issue.
“If the non-delegation doctrine exists, as the Supreme Court proclaims, then this hypothesized statute would seem to violate it. After all, the Court has not overruled or even questioned its decision in the Schechter Poultry case, striking down the National Industrial Recovery Act. On the contrary, the Court has continued to insist on the need for an ‘intelligible principle’ by which to limit the exercise of agency discretion. Remarkably, however, the core provision of one of the nation’s most important regulatory statutes—the Occupational Safety and Health Act (‘OSHA’)—is not easy to distinguish from the hypothesized statute.
That provision defines an ‘occupational safety and health standard’ as one that is ‘reasonably necessary or appropriate to provide safe or healthful employment and places of employment.’ When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is ‘reasonably necessary or appropriate’. Notably, this language appears in a mere definitional clause, not in a separate substantive provision instructing the Secretary what, exactly, he is supposed to consider in deciding what to do. Nor is the agency required to do whatever is ‘necessary,’ strictly speaking, in order to provide safe employment; its duty is softened, in the sense that it is told to do what is ‘reasonably necessary.’ In fact, the agency is not even required to do that. Apparently it is permitted to reject what is ‘reasonably necessary’ and instead to select what is merely ‘appropriate.’ And how does the agency decide what counts as either ‘reasonably necessary’ or ‘appropriate’?
The broadest difficulty is that with the ‘reasonably necessary or appropriate’ language, Congress appears, at least at first glance, to have made no decision at all about the substantive standard under which the Secretary of Labor is supposed to proceed. A reader might be tempted to conclude that Congress has said, ‘make things better,’ without giving the Secretary guidance about how, exactly, he is to go about accomplishing that task.”
Not only is the existence of OSHA and the Deparmtent of Labor arbitrary … but their realm of power and job description is also arbitrary. Again, remember, those writing and enforcing these OSHA laws are not subject to “the people” at all since they are not elected.
Constitutionality of OSHA
Should I even have to answer this? The federal government was never given the power, under the current Constitution, to force employers to make their employees to do anything. Nor were they given the power to tell private businesses how to run their business, how much to pay their employees, how to handle retirement and the like.
Again, an amendment could add some power to the federal government here. But since there is no amendment and therefore no Constitutional justification for such power, this power is not defined and therefore not confined by the Constitution. Which leads me to the following question. What can’t the unelected Department of Labor tell private businesses to do or not do?
The Executive and Law
Assuming that OSHA is Constitutional means that the question now is, can the President arbitrarily write new law to add to the already existent OSH law to then be mandated by the actual agency, OSHA?
A mouthful? Yes. This is how messy this situation is.
Constitutionally, of course not. Only Congress can write law. Congress is the most directly connected to the people–the employers of government–therefore only Congress can write the legislation that will directly affect the people.
But, we’re not really operating in any Constitutional confines here are we? The very agency itself isn’t supported by Constitutional grounds, nor does it have any clearly defined statutory job description…why then should we worry about whether or not the President can or cannot Constitutionally mandate extra rules on the American public by adding to this already arbitrary and undefined behemoth of power?
The Supreme Court and Vaccine Mandates
Do you see why discussing the Constitutionality of this whole topic is incredibly difficult and layered? It should come as no surprise then to see what Supreme Court Justices are debating about.
Since the Constitution has little to do with the topic at hand, why not debate the severity of COVID and the importance of vaccines …they’ve already consented to the assumptions that OSHA is Constitutional, that the federal government does possess a Constitutional role in managing how businesses are conducted, and that the President has the power to, upon a whim, change or add to federal agency implementation of law, even if that means writing more law himself.
Do you see the danger of arbitrary power…even when presumably used for good at its inception?
There is no Constitutional argument to be had or made in the Court right now. We’re merely waiting to hear the arbitrary opinion of nine individuals and how much power they’re willing to declare the president and OSHA have.
Because the power they are discussing comes from nowhere, the only thing that matters then is the nine individual’s perceptions of severity and/or desire for more power… based on no outside objective standard.
Frankly, at this point, what’s stopping any of them from just outright saying government can do whatever?
Here’s a brief overview of statements I’m seeing from employers to their employees today:
The U.S. Supreme Court is considering the OSHA Emergency Temporary Standard that would require said company to collect the vaccination status of all active employees. Since the Court is still debating this, we have been advised to hold off on implementation.
However, if the mandate is upheld by the Court, we will have to quickly communicate and implement the policy aligned with the OSHA standard, as well as how to report vaccination status, provide documentation if applicable, and address other requirements in the mandate.
The fact that any businesses’ behavior relies so blindly, so exclusively, on the behavior and arbitrary whim of these nine justices is staggering, actually frightening, to me. What of our basic understanding of liberty under the Constitution regardless of what those nine people say? What of freedom? Since when did we, Americans, start blindly accepting government “mandates”–no matter what the topic–as if these mandates are not only expected but justified?
My friends. What solves such passive and apathetic compliance?
Knowledge. The information I just gave you.
It’s no trivial statement. Knowledge IS power.
The Liberty Belle