How the Supreme Court rules during a pandemic shows what may happen next

Right-wing justices have expressed concerns that US agencies are regulating “the daily lives and liberties of millions of Americans,” in the words of Neil Gorsuch, and that “the executive branch actually touches almost every aspect of Americans’ lives,” Samuel Alito wrote.

“These cases are not related to the efficacy or importance of COVID-19 vaccines,” Judge Clarence Thomas added in one of the double controversies. “They’re just about whether (a federal agency) has the legal authority to compel health care workers, through coercive employers, to undergo a medical procedure that they neither want nor can undo.”

Their views, which have sharpened in recent years, are likely to lead to limits on federal authority over public health and safety, labor protections and environmental safeguards. Immediately looming, in the cases to be discussed in February, are questions about the extent of the EPA’s reach to reduce power plant emissions.

The gravity of the current pandemic, which has killed nearly a million Americans, has failed to entice conservatives to withdraw. Instead, the cases provided an opportunity – especially for the three justices on the far right – to show determination in this area of ​​law.

At stake are practical questions related to the administration’s efforts to protect public health and the environment, as well as concerns about fundamental separation of powers.

A conservative majority led by Chief Justice John Roberts has increasingly restricted regulatory power, as evidenced by Thursday’s decision to ban a vaccine demand for large employers that could have affected an estimated 80 million workers.

But Roberts did not push as hard as Thomas, Alito, and Gorsuch for an overhaul of federal power. In fact, Roberts voted separately Thursday to allow the Secretary of Health and Human Services to impose a vaccine mandate on workers in hospitals and other places that receive federal funding for Medicare and Medicaid.

Justice Brett Kavanaugh joined Roberts, along with the court’s three liberal justices, in this decision covering an estimated 10 million health care workers. Thomas, Alito and Gorsuch have been in opposition, along with former President Donald Trump’s most recent appointment, Amy Connie Barrett.

Dual disagreements and shifting voices revealed the conservatives and liberals’ struggle for power over this nine-member post. But they also showed that within the dominant right wing, three judges – Thomas, Alito and Gorsuch – wield a more forceful approach against the authority of the traditional agency.

Their views could further jeopardize US regulators and their inherent expertise, while giving more power to the judiciary.

To this point, Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan, opponents because the majority rejected the Occupational Safety and Health Administration Act Vaccine, wrote, “The agency has comprehensively assessed the risks the disease poses to workers in all sectors of the economy. … The agency’s standard is reported at half A century of experience and expertise in dealing with health and safety issues in the workplace. The standard also has the virtue of political accountability, because OSHA is accountable to the president, and the president is accountable to the American public and can be held accountable.”

The Liberals went on to say, “And then, there’s this court. Its members are elected and accountable to no one. And we lack the background, competence, and experience to assess health and safety issues in the workplace.”

‘Great danger’ in exchange for congressional approval

The Biden administration has argued that OSHA’s power to compel employers of 100 or more workers to impose a requirement for a vaccine or weekly Covid-19 testing and masks derives from its statutory authority to protect employees from “grave danger” through exposure to new and harmful risks. Client.

The court dismissed these arguments, declaring in its main opinion that the Occupational Safety and Health Administration (OSHA) overstepped its statutory role in workplace safety as it addressed public public health concerns arising from Covid-19. The majority opinion, which was not signed, narrowly interpreted OSHA’s authority over “occupational” safety.

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She described the Biden rule as a “blunt tool” that “imposes no discrimination based on industry or risk of exposure to Covid-19. Thus, most lifeguards and shipping workers face the same regulations as doctors and meat educators.”

The court’s assertion, that the vaccine rules were not a “property tailored to the risks to different types of workers and workplaces,” reflects a traditionally conservative interpretation.

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In contrast, the three governors, who made a separate, simultaneous manifesto, wrote more in detail about the agency’s limits of power and addressed larger constitutional questions of the separation of powers. They touched on the topics adopted by the Trump administration, which sought to reduce the reach of the “administrative state” in its political agenda and in the selection of judicial candidates.

Gorsuch, joined by Thomas and Alito, wrote, “If administrative agencies are to seek to regulate the daily lives and liberties of millions of Americans, they must at least be able to trace that power to a clear grant of authority from Congress.”

Gorsh noted that Congress may “occasionally tend to delegate power to agencies” to avoid being held accountable for unpopular policies.

But he added, “If Congress could hand over all of its legislative powers to non-elected officials of the agency, it would destroy the entire blueprint of our Constitution and enable interference in the private lives and liberty of Americans by express decree and not merely with the consent of their elected representatives.”

Versions of the debate over Congress’ ability to delegate power to agencies have surfaced in earlier cases, with liberals often asserting that Congress relies on agencies to implement laws in today’s increasingly complex times.

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However, on Thursday, the three Liberals chose to bear the immediate cost to the country of the OSHA decision.

“In the face of a pandemic that remains intractable,” Breyer, Sotomayor and Kagan wrote in a joint statement, “this court tells the agency tasked with protecting worker safety that it may not do so in all required workplaces. Like illness and death this court continues to escalate, and this court tells the agency that it cannot respond in the most effective way possible…it undermines the ability of responsible federal officials, acting well within their authority, to protect American workers from grave danger.”

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