Good Morning! The Supreme Court is dog shit. Let's discuss!

After having been shamed for issuing so many decisions on the "shadow docket," the Court agreed to an expedited hearing in two vaccine mandate cases on January 7. This first case, National Federation of Independent Business v. OSHA, involved an “emergency temporary standard” issued by the Occupational Safety and Health Administration mandating that every business with more than 100 employees require vaccination or regular testing to prevent the spread of COVID at work. In the second case, Biden v. Missouri, the Centers for Medicare and Medicaid Services (CMMS) required that all health care workers at federally funded sites be vaccinated.

The decisions came down yesterday afternoon, and we lost the first and won the second. And by "we," I mean those of us who would like life to go back to normal and appreciate that we might actually have an obligation to give up something to protect the health and safety of other human beings to get there.


The ruling in NFIB was issued per curiam, which is to say it was unsigned. But since the court's three liberal justices drafted a dissent, you can read this as effectively a 6-3 decision — or to be more precise, an unsigned declaration that the court intends to seize the power to invalidate any law it dislikes by shouting "Major question doctrine!" and "Nondelegation doctrine!" over and over until we have no health and safety regulations at all.

Let's not dwell on the utter callousness of forcing millions of Americans to go back to the office with their unvaccinated, unmasked co-workers. Suffice it to say that six judges who spent two years working remotely and are still in a building that is closed to the public are deeply concerned about "a significant encroachment into the lives — and health — of a vast number of employees" because "vaccination, after all, 'cannot be undone at the end of the workday.'”

Ensconced as they are in their own bubble, these six judges declare that the vaccine mandate is not an emergency work rule but a sneaky trick to get more Americans vaccinated and thus exceeds OSHA's mandate from Congress. Now a normal person might look at a pandemic that has killed close to 900,000 Americans, and which is fast becoming a pandemic of the unvaccinated since that's who's winding up in the hospital or the morgue at this point, and call it a public health emergency. But not these guys! By their reasoning, Congress failed to specifically delegate the power to OSHA to impose public health measures in a pandemic, and since you can catch COVID anywhere, it's not even a workplace hazard.

Look, it's really stupid. But not as stupid — not to say dangerous — as the concurrence by Justice Neil Gorsuch, signed onto by Justices Samuel Alito and Clarence Thomas. In their telling, if Congress really intended OSHA to have the awesome power to order American workers to undergo "a medical procedure that affects their lives outside the workplace," i.e., a painless injection that takes three seconds at Walgreens, it had to say so explicitly because of the "major questions doctrine." And if you've never heard of that, it's because these so-called originalists made it up as a way to invalidate legislation they don't like.

But if Congress actually does get off its ass and empower an executive branch to do something the newly empowered conservative SCOTUS majority doesn't like, the conservative justices can always fall back on the "nondelegation doctrine" and invalidate the law by saying that Congress wasn't allowed to give up the power anyway. Yep, they invented another doctrine which allows them to toss out laws at will.

"If Congress could hand off all its legislative powers to unelected agency officials, it 'would dash the whole scheme' of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives," chirps Gorsuch, ever the cheerful nihilist. It's really gross, and it's really how they're going to dismantle any legislation they don't like.

There is one slightly brighter note, which is that a 5-4 majority of the court allowed the CMMS vaccine mandate to go through, prompting Tucker Carlson to call Justice Brett Kavanaugh a "cringing little liberal."



But the four lunatic justices, and that includes Justice Amy Coney Barrett, got behind Justice Thomas's insane broadside against an "omnibus rule [which] compels millions of healthcare workers to undergo an unwanted medical procedure that 'cannot be removed at the end of the shift.'” They are telling you in no uncertain terms that they intend to block each and every public health regulation on the grounds that Congress hasn't specifically delegated the authority — and if it did, it wasn't allowed to anyway.

So, we can take some small comfort in the fact that Chief Justice John Roberts and Justice Kavanaugh "cringed" at the prospect of forcing sick people to get care from unvaxxed healthcare workers. But soon this pandemic will be over. Well ... soonish, thanks to conservatives who treat every public health measure like a secret plot to lock them up in Gitmo. And you can bet your bottom dollar that Kegstand and Mr. Reasonable will hop right back on the bus with their buddies when we get to the other side of this.

In summary and in conclusion, 13 justices for 13 circuits. Expand the court.

[NFIB v. Osha / Biden v. Missouri]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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