Neil Gorsuch, Vaccines And How The Right Is Winning Its War On Government
Protecting Americans from environmental hazards, threats to public health and other dangers just got a lot harder.
[Note: Sorry for the dearth of posts lately! I took some time off around the holidays and have been working mostly on longer term projects since. I’m back to more regular writing now.]
You may have followed the back-and-forth this week over whether Justice Sonia Sotomayor's decision to appear at oral argument virtually was a reaction to her colleague, Neil Gorsuch, refusing a request from Chief Justice Roberts that he wear a mask. A story by NPR's Nina Totenberg said as much. Then the justices released statements pushing back on the report.
II you read both the original dispatch and the statements, you noticed their careful wording allowed for the possibility that all of them were technically true. Maybe, for example, Roberts' request was clear but not quite explicit. Or something like that. A subsequent clarification from NPR, standing by the reporting but conceding the wording may have been misleading, would be consistent with that explanation.
Whatever. I'm not here to tell you what kind of colleague Gorsuch is. I *am* here to tell you what kind of judge he is -- and how his legal vision is already drawing new limits on what the federal government can and can't do, starting with the big decision blocking the Biden administration’s workplace vaccine rule.
Put aside for the moment what it means for the pandemic, although the death of thousands and hospitalizations of hundreds of thousands (which is what an official projection suggested the workplace vaccine rule would prevent) is obviously a huge deal. The Court’s decision is the clearest expression yet of a belief, of which Gorsuch is the best known champion, that the Constitution doesn't allow Congress to empower federal agencies the way it has for decades.
Legal scholars have been warning that if this notion becomes the majority view on the Court, it will call into question a big chunk of what the federal government does today. Regulations on everything from product safety to health insurance rely on the ability of agencies to interpret broad mandates. It's just not practical to expect 535 representatives and senators to spell out every contingency and possibility when they write the laws creating agencies.
And yet that seems to be what a majority of justices are now demanding.
Of all the comments in oral arguments that stuck with me, it was one from Chief Justice Roberts -- who, these days, qualifies as the resident moderate. Twice he brought up that the law creating OSHA was 50 years old, and clearly Congress 50 years wasn't thinking about COVID or the COVID vaccine at the time.
Well of course. Neither existed. But lawmakers at the time *did* give OSHA emergency powers to protect workers from "grave hazards" from "new danger." That sure sounds like COVID-19.
My latest article at HuffPost explores the vaccine opinion and its implications -- which include, I suspect, a lot more scrutiny over climate change regulations that, like the vaccine rule, are designed to save lives. And I link the decision to the broader conservative project to contain and downsize government, a campaign that's been underway really since the 60s and 70s.
As I note, it's had only limited success at the ballot box. Even Ronald Reagan couldn't take his war on regulation as far as he wanted, because voters -- for all of their frustration with bureaucrats -- care a lot about clean water and air, safe products, etc. But the courts are now packed with Federalist Society judges poised to strike down consumer, environmental and safety protections in a way we haven't seen since the early 20th Century.
The jurists say they are doing so in the name of democratic accountability, because agencies aren't beholden to voters in the way Congress is. But these judges, including the ones on the Supreme Court, have lifetime tenure. And there isn't a thing voters can do about that.
Thank you for reading.