When the Supreme Court blocked OSHA’s authorization to test or vaccinate on Thursday while upholding the Centers for Medicare & Medicaid Services’ vaccine requirement for all healthcare workers, you may think this is a divisive decision with the judges only calling for strikes and protests. You will die wrong.
This is a super partisan decision that would dodge President Biden’s COVID-19 strategy.
Let us first discuss the degree of hypocrisy of the six conservative judges. The court insists on some strictest COVID-19 policy rule in the nation. All attorneys must take a PCR test and wear an N95 or KN95 mask in court. But what they ask for themselves refuses a construction or assembly worker. In other words, the most privileged could protect themselves, but they would deny that protection to everyday workers.
The Court’s decision will directly lead to thousands of preventable deaths.
We were stuck at vaccination rates of just over 60%, and much lower for boosters. That puts us near the bottom of our peer countries. The president’s sole goal in increasing vaccination coverage is his big business mission, which will reach 85 million workers. By comparison, CMS’s mandate is a small change since most healthcare workers have been vaccinated and major hospitals have requested it. OSHA itself estimates its rule will save the lives of 6,500 workers, but that doesn’t affect the lives of family members and others a mission would also have to protect.
The disastrous ruling will hit red states particularly hard, where governors fiercely oppose the mandate. States like Florida, Texas, and Arkansas actually forbid employers from requiring vaccinations, even if the employer thinks it’s a smart business decision. And the OSHA rule will provide political cover for business leaders worried about facing public and political backlash. It will also apply before state anti-vax laws.
Consider the Court’s argument. The judges were clearly hostile from the start over the big and bold federal regulation. They go on to call the OSHA rule a vaccine regulation, but it’s not. Employees can simply be screened and masked — a really basic workplace safety strategy and hardly an overkill.
The judges also objected to the idea that OSHA could establish any Safety rules for COVID-19. After all, the pandemic affects all sectors of society and not just the workplace. That’s true, but it ignores two fundamental legal issues. First, Congress explicitly granted OSHA the power to regulate safety hazards in the workplace and did not emphasize that those hazards only apply to the workplace. If the Court just called the ball and went on strike, they would stick to the text of the Occupational Safety and Health Act.
Monday, COVID-19 do creates a unique risk in the workplace. There is no other place where people spend eight hours a day crammed with strangers — not in grocery stores, restaurants, or even concerts. And here’s the thing. Most Americans have no choice but to make a living. They deserve to work in a healthy and safe environment.
The judges pointed out that a major problem is that the OSHA rule would have a huge economic impact in the private sector. But OSHA has put in place a multitude of rules that impose huge costs on employers. The vaccine or testing mandate is hardly unique in that regard and it would only apply to large businesses while most OSHA rules apply to all businesses. The court has delved into the so-called “big questions” doctrine, which casts great doubt on any legal action with major economic or political impact. If Congress is not allowed to delegate key powers to regulators, it will shed light on not only what OSHA does, but also CDC, FDA, and EPA. It risks federal protection against dangerous consumer products, unsafe food and drugs, as well as nuclear or chemical hazards, to name just a few.
As judges Breyer, Sotomayor and Kagan said in their dissent, the OSHA rule is indeed far-reaching. But it does reflect the scope of the crisis – an unprecedented health emergency in the nation’s history that has killed more than 800,000 Americans to date, with a new variant potentially spreading to levels that pose serious risks in the common indoor spaces that are hallmarks of American working life.
Never before has the health emergency been so politically divisive. And never before has a president struggled with an ideological majority of judges to stave off conventional health and safety regulations.
https://www.thedailybeast.com/the-supreme-courts-vaccine-mandae-decisions-spit-in-the-face-of-joe-biden-and-the-american-public?source=articles&via=rss The Supreme Court’s vaccination mandate decisions have hit Joe Biden and the American public in the face