Progressive pundits take aim at the Supreme Court for ruling that a workplace safety law actually applies to the workplace, claiming there is no distinction between the two. Others believe the Court has exceeded its power by ensuring agencies operate within the bounds of their legal mandate. Still others blame Republicans in general and demand we stack the court.
Last week, the Supreme Court ruled that President Joe Biden’s vaccine mandate for employers exceeded the powers authorized by the 1970 Occupational Safety and Health Act, even those granted by the “emergency temporary standards” provision which allows the administration to issue rules without the normal public review process. The 6-3 majority ruling stated “OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.” To arrive at this conclusion, the Supreme Court distinguished between threats to the workplace and universal threats, reasoning that OSHA “empowers the Secretary to set workplace safety standards, not broad public health measures.” “OSHA is tasked with ensuring occupational safety— that is, ‘safe and healthful working conditions.’ It does so by enforcing occupational safety and health standards promulgated by the Secretary. Such standards must be ‘reasonably necessary or appropriate to provide safe or healthful employment.’” Further, “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.”
They concluded that “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.” This is undoubtedly true and no one actually disputes this. It’s a fact that the Occupational Safety and Health Act has never before been used in this manner, nor was it ever intended to support broad public health and safety measures. In addition, the use of emergency rules in general has a very limited history of success. The Court wrote in that regard, “Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full,” making the mandate dubious on its face.
Perhaps needless to say, none of this prevented progressive politicians and pundits from immediately expressing their displeasure, smearing the court and Republicans in general, claiming the real plan, or perhaps I should call it a conspiracy, is to kill as many people as possible for political reasons. The Alliance for Justice tweeted that “The Supreme Court’s conservative majority has chosen to prolong and deepen the misery of the pandemic. The people need their courts back. #ExpandtheCourt.” Occupy Democrats also took the opportunity to push their court packing scheme while Brad Woodhouse, a former Director of Communications for the Democrat National Committee was more direct about conservative intentions, “Republicans want to prolong the pandemic – have more people get sick and die – so they can blame Biden and win an election. And the Supreme Court just helped them. Disgraceful.” Anthony Michael Kreis, a law professor at Georgia State, apparently one with no understanding of the law, claimed “The Court is willing to let people die in the name of indefensible formalism. The president should take the Supreme Court to task for this abomination.”
Mr. Kreis didn’t elaborate what he meant by “indefensible formalism,” but other progressive pundits took direct aim at the legal reasoning, claiming the majority created a distinction where absolutely none exists. Slate’s Mark Joseph Stern confidently declared “The Supreme Court Had No Legal Reason to Block Biden’s Workplace Vaccine Rules, So it made one up.” First, he provided a little background on the nature of the “emergency temporary standard” OSHA used to support the mandate. The standard allows the agency to protect employees from “grave danger” caused by “physically harmful” “agents” or “new hazards.” From there, Mr. Stern reasoned that COVID is “undoubtedly a ‘grave danger’ and ‘new hazard’ to workers,” making the mandate completely legitimate within the plain text of the law in his view. Therefore, “The majority invented a distinction between hazards that occur solely in the workplace and hazards that occur in and out of the workplace.” Mr. Stern cited Justice Stephen Breyer, Sonia Sotomayor, and Elena Kagan’s dissenting opinion, claiming they “shredded this anti-textual approach to statutory interpretation” by insisting the majority impose “a limit found no place in the governing statute.”
In other words, a workplace safety law makes no distinction between what happens in a workplace and what happens everywhere, at least as progressive logic would have it. One might ask them why it is specifically a workplace safety law in the first place instead of some generalized statute, but let’s follow this logic to its inevitable conclusion. Progressives also believe that carbon dioxide is a pollutant as a greenhouse gas which causes global warming and therefore poses a “grave danger” both “in and out of the workplace.” If there is no distinction between the two, what is to prevent a President from banning carbon emissions under workplace safety regulations? According to progressives, it meets exactly the same criteria. Why is President Biden not advocating that course given his administration claims global warming is an existential threat? Perhaps that will be next.
The New Republic’s Matt Ford is even more shocked that the President doesn’t have the power to make up new laws as he goes along, writing “More ominous is the basic mindset that girds the conservative justices’ thinking in both cases. In its view, the executive branch cannot use its existing powers imaginatively to address novel matters of public concern.” The imaginative exercise of never before seen power? That’s a good thing in his mind? It’s almost enough to make one think Mr. Ford might be joking, but he’s not. Instead, he believes “The real ruling appears to be this: The Biden administration can only try new solutions to new problems if it runs them through a gerrymandered House and a filibuster-friendly Senate first. All those laws that Congress already spent two centuries writing and updating? They don’t count anymore—or, barring that, there are countless new restrictions and limits to be found in their text.” Left unsaid is how limiting a workplace safety law to the actual workplace is somehow a new limit. I guess I’m not imaginative enough to understand it.
This theme was also picked up on by Kimberly Wehle, a professor of law a the University of Baltimore School of Law, writing for Politico. Somehow, Ms. Wehle reasoned that the Supreme Court blocking a never before seen or used power, one Biden himself said he didn’t have, is actually a power grab on behalf of the Court. The “biggest loser coming out of these decisions is not the president’s reputation as a problem solver but decades of constitutionally established power-sharing between the legislative and executive branches. And the winner, if that’s the right term, is the Supreme Court itself, which has executed an unprecedented power grab and masked it as an act of judicial restraint.” She too believes the law makes no distinction between occupational or other hazards, even though occupational is right in the title. Ms. Wehle continued to insist that agencies like OSHA have some limitless ability to take on new powers without changes to the law. In her view, the Court previously granted more deference to agencies back in 1984 and their stance is changing now, but so what? The Supreme Court is charged with safeguarding our rights. It’s primary purpose is to conduct judicial review and smackdown laws that infringe those rights, and that is precisely what they have done here, while progressives pretend it’s some all new phenomenon.
In addition, progressive ire extended well past the Supreme Court itself as some took aim at Republicans in general. CNN’s resident propagandist, Stephen Collinson, declared that “Biden and Democrats” have “run up against relentless conservative power.” “Democrats control Washington but President Joe Biden is staring at a wall of conservative power, accrued over years and wielded with a ruthlessness and zeal for rule-breaking that his own party has rarely matched,” he opined. Incredibly, Mr. Collinson seems to follow the logic behind the ruling, noting that the “question of the power of the relative branches of the US government is as old as the republic itself” and “White Houses often face court rebukes on executive power,” before going ahead and spinning the story anyway because “the case cannot be divorced from its political context. It was brought by Republican-run states that have spent the past year seeking to disable Biden’s attempt to fight the virus.” Mr. Collinson then breezily accused the Court of being the “most politicized” “in modern memory,” the product of an “illegitimate application of power and indifference to the principles of democracy.” His concern is the way Senate Minority Leader Mitch McConnell blocked then President Barack Obama’s desired appointment of Merrick Garland during the 2106 election, but confirmed Brett Kavanaugh during the 2020.
Mr. Collinson claims Senator McConnell “invented” a principle and then broke it, while failing to mention that the principle is the Constitution itself, specifically the Senate’s powers under advise and consent, forget that it was formerly known as the “Biden Rule.” Putting this another way: A Supreme Court Justice can only be confirmed by the Senate and the party that controls the Senate controls the confirmation process. In 2016, Senator McConnell used that control to block the confirmation of Merrick Garland. In 2020, he used the same control to confirm Brett Kavanagh. This is American democracy in action, and yet Mr. Collinson believes it’s “illegitimate” because progressives didn’t get their way. Amazingly, he says this with a straight face while simultaneously supporting the elimination of the filibuster, a federal takeover of elections, using reconciliation in ways never before seen to pass major social programs, and every other technique the Democrats can dream up that runs counter to centuries of law and precedent. In other words, in his mind, the Republicans’ use of the power duly granted to them by the Constitution is illegitimate, but Democrats can do whatever they please and call it democracy.
Even worse, this twisted reasoning is all predicated on a fundamentally false proposition, one unfortunately promulgated by progressives on the Supreme Court itself. In this regard, Mr. Collinson claimed that the Supreme Court’s decision “struck at the heart of Biden’s strategy for finally ending the pandemic as the highly infectious Omicron variant surges. More broadly, it devastates his attempt to use the powers of the federal government to combat the worst public health crisis in 100 years.” Similarly, Mr. Stern wrote that OSHA issued the vaccine mandate to “protect workers from” “superspreader events,” citing the dissenting justices’ claim that the “virus “spreads more widely in workplaces than in other venues because more people spend more time together there” and that OSHA “backed up its conclusions with hundreds of reports of workplace COVID-19 outbreaks.” Except, Biden’s own CDC has concluded that vaccines don’t stop the spread or prevent outbreaks, meaning a mandate policy cannot achieve any of these goals. As early as last summer, long before Omicron hit American shores, Dr. Rochelle Walensky said, specifically, “They continue to work well for Delta, with regard to severe illness and death – they prevent it. But what they can’t do anymore is prevent transmission.” Why then are progressives still insisting vaccines can do what they clearly can’t?
Alas, this is the self-proclaimed party of science, democracy, and the rule of law circa 2022: They lie about the science, contort logic and reason itself in service of those lies, pretend they cannot understand the distinction between work and the home, violate almost every long-standing principle in the Republic, and then claim they and they alone stand between democracy and autocracy. There is an underlying question as well: If laws don’t mean what they say, what is their purpose if the executive can get imaginative and do whatever they want anyway?