It is surely a profound relief to many an American breadwinner, whose workmates may happen to number a hundred or more, to learn that the highest court in the land will not countenance the attempts of a distant agency, charged with maintaining workplace safety, to force his employer to treat him as a guinea pig in a global pharmacological experiment.
At the same time, it may baffle the thoughtful citizen to observe the same esteemed tribunal, in a separate but similar case, ready to confer its blessing on another band of bureaucrats, who insist that healthcare professionals, trained in the science and art of healing, are incompetent to judge what substances ought to be injected into their own bodies.
Neither decision is final, as each concerns how to settle the status quo while lower courts try the merits of the respective cases. Yet the standard employed in these cases requires the court to project likely winners, and their reasoning is bound to shape the legal landscape in the months and years to come.
How then can we account for these discrepant judgments?
Although both cases affect personal rights, the litigants (a federation of businesses, and numerous states) challenge the mandates mostly in terms of who has the authority to govern in such matters. Hence, the court focuses on whether the powers the American people have delegated to our elected representatives are legitimately employed, or rather usurped, in these particular diktats.
In NFIB v. OSHA, the court asks whether Congress, in delegating matters of occupational safety to the agency in question, meant for its regulatory power to extend to matters of general public health, or “safety” measures affecting the lives of workers long after they have left the workplace.
Despite the bloviating of three dissenters—one of whom believes that 100,000 children are currently on respirators; another of whom estimates that roughly 200% of Americans are currently afflicted with a disease it is now so fashionable to dread—six justices were sane enough to see their way to drawing the obvious, and negative, conclusion.
So far, so good.
Then we come to Biden v. Missouri. Here, two justices, who in the prior case demanded proof of Congress’s clear intent to empower OSHA in such weighty matters, meekly concede that the Centers for Medicare and Medicaid Services (CMS) are so empowered, not because Congress ever said so, but simply because their governing agency (Health and Human Services) sports such an impressive title, and has a track record of exceeding its statutory powers, and getting away with it.
As Justice Thomas demonstrates in his dissent, the purpose of CMS is to administer a pair of welfare programs, and the only “health and safety” powers genuinely granted them by Congress amount to nothing more than ensuring that facilities receiving federal monies are the real deal. To this end, the HHS Secretary is permitted to publish reasonable standards, such as the employment of minimally qualified staff, attention to proper hygiene, effective pest control, and the like.
Any attention to vaccines on the part of CMS has always been a stretch. But even so, these feds have never done more than ensure that employees of an approved provider have access to favored injections on a voluntary basis.
We must be genuinely grateful for NFIB, which rescues a great many Americans from serious oppression. For those disposed to take it as a sign that the court is prepared to rein in Sleepy Joe’s reign of terror, however, Justice Gorsuch’s dissent in Biden is a bucket of cold water.
As he rightly notes, the Biden court clearly signals that it can be persuaded to reward unelected technocrats with more power, the bolder and more intransigent they have previously been in asserting powers they do not have.
For Justices Roberts and Kavanaugh, the tough talk in NFIB appears to be a smokescreen for their surrender, in Biden, to administrative despotism.
It is comforting to see that Justice Barrett, at least, stands firm in joining both Biden dissents. As for Roberts, he was already a lost cause. Unless someone helps Kavanaugh find his backbone, however, any comfort freedom loving citizens take this January may turn ice cold before the heat of summer has given way to the autumnal breezes of election season.
It is better to have a court that protects our freedoms sometimes, than never. Yet judges that flip one way here, and flop another there, cannot be relied upon to establish a legal framework in which a meaningful truce between factions is practically possible.
In brief, there is no reason to think that NFIB, coupled with Biden, will persuade the enemies of liberty to abandon their wicked designs against our constitutional republic. To the contrary, they will take these decisions as encouragement to redouble their efforts at deception, intimidation, and corruption.
What then can we do when our constitutional watchmen are wobbling? I can suggest nothing better than the resolution to make 2022 a year in which each and every American demonstrates greater civic fortitude than he has hitherto been wont to do.
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