Bummer: SCOTUS Mandate Decision Could Be First Salvo In War On Administrative State

LA Times writer David Cole writes this op-ed like reducing the power the of the federal administrative state is a bad thing (LA Times piece behind paywall, using the Yahoo edition)

Op-Ed: The Supreme Court’s vaccine mandate ruling is the start of something far worse

The Supreme Court’s recent decision to block the Biden administration’s vaccination-or-test requirement for large private businesses will threaten the safety of hundreds of thousands of workers. But the damage it could do goes well beyond the pandemic.

The court’s 6-3 majority acknowledged that the order would save more than 6,500 lives and prevent more than 250,000 hospitalizations — but went ahead and blocked it anyway. There is probably no other court in the world that would stop its national government from taking such common-sense emergency measures to protect workers from the life-threatening risks of COVID. On Friday, a federal judge, relying on the Supreme Court’s decision, went still further, ruling that the president could not even require the federal government’s own employees to be vaccinated, despite a statute giving him broad authority to regulate employment policy for all federal workers.

Employment policy is not requiring workers put a vaccine in their body which is there after work. The judge apparently thought that the law didn’t give Biden the authority to do that. It doesn’t matter that it’s a pandemic, what matters is what the Constitution, then the law, says. Period. SCOTUS was also leary of the “grave danger” when the mandates would kick in a year after the vaccines were released.

Even more worrisome, though, is what the court’s reasoning means for our ability to address national challenges going forward. The majority stopped the order based on a wildly anachronistic vision of how the federal government should operate — one that would require Congress itself, rather than federal agencies, to micromanage complex problems.

This makes David, and you know lots and lots of Progressives (nice Fascists) mad, because it would limit the ability of the federal government to do whatever the hell they want using the most minuscule portion of a law, digging for it, trying to find a way to make it apply

But no. They jettisoned their commitment to textualism, and instead, came up with a way to throw the text aside. They maintained that when Congress authorizes an agency “to exercise powers of vast economic and political significance,” it must “speak clearly.” And then they reasoned that because Congress directed OSHA to address “occupational” safety — and COVID presents dangers outside as well as inside the workplace — OSHA’s authority was insufficiently clear. But nothing in the law limits OSHA to addressing only dangers that arise exclusively in the workplace, and it has long regulated dangers that arise at work and outside work, such as fire and dust.

If the law is not specific, if it doesn’t say something specific, then a federal agency shouldn’t be able to simply pull a justification out of a hat. OSHA cannot regulated what you do at home or outside of work. It’d probably be safer for you to wear work gloves that allow you to grip the steering wheel better on your way home to work, right? Maybe head protection? Heck, you never know, a fire retardant suit. They do not have the authority. You probably have a lot of things in your home that would violate OSHA workplace rules, like things sitting on the floor that block aisles and create hazards. No authority.

Justice Neil M. Gorsuch, in a concurring opinion joined by Clarence Thomas and Samuel A. Alito Jr., tied the majority’s approach to the long dormant “nondelegation doctrine,” which says that Congress cannot delegate its powers to another branch of government. The upshot is to require Congress itself to act rather than allowing the executive branch, through its departments and agencies, to do so wherever the justices deem an issue “major,” a term the court has never defined.

That’s exactly right, Congress cannot delegate authority, laws should be targeted. The Executive Branch can’t just make them up.

Congress cannot possibly legislate all the regulations that it takes to govern the nation — even if it weren’t mired in partisan gridlock. Many subjects require expertise and fact-finding that must, for all practical purposes, be done by federal agencies. Everything the Federal Reserve Board does has “vast economic and political significance,” but surely that doesn’t mean Congress has to set interest rates.

That’s why there’s a 10th Amendment. Congress, and the federal government, is not meant to govern the whole nation in every thing that arises. But, what David means is “Los Federales telling everyone how to live their lives.”

Countless areas of the modern economy are regulated and governed by federal agencies; that’s their job. Yet the decision to block the OSHA vaccine-or-test requirement is an initial salvo in what could become a full-scale attack on the administrative state.

Good. It needs to be rolled back and the power returned to the states, where it belongs. If California wants to mandate vaccination in the state, that’s within their power, if they pass a law. That’s not a power that the federal government has. Some say to use the Commerce Clause, which would be a big stretch. Cole is the national legal director of the ACLU. He should know this. He should know what the Constitution says, and what it means based on the writings of those who wrote the Constitution, including the Bill of Rights, such as the Federalist papers.

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23 Responses to “Bummer: SCOTUS Mandate Decision Could Be First Salvo In War On Administrative State”

  1. Jl says:

    “The order would save 6500 lives…”. Really? Nice logic-then mandating that we don’t use automobiles would save around 38,000 lives a year. Is Mr. Cole trying to be stupid or is that how his brain actually works..?

  2. alanstorm says:

    It’s from Yahoo. Logic is not required.

  3. alanstorm says:

    Yet the decision to block the OSHA vaccine-or-test requirement is an initial salvo in what could become a full-scale attack on the administrative state.

    May it be so.

    Evidently, the writer attended government schools and got a trophy.

  4. The Court blocking the Biden Administration from imposing a vaccine mandate on businesses does not stop businesses from imposing such a mandate on their own companies. If businesses want to do so, they still can. If businesses choose not to do so, then they have their reasons.

    We’re being told that hospitalizations from COVID are very heavily skewed to the unvaccinated, to the tune of roughly 92%. So, I have to ask: if that’s the case, and the Xi Omicron variant is now dominant, and the vaccinated are just as likely to contract it as the unvaccinated, why do the left care, unless this is about nothing but the power to control people’s lives?

    The unvaccinated have taken their own decisions, and the consequences of the disease are all on them.

    • Phil says:

      That 92% number was partially based on the US counting as “unvaccinated” all of the cases (and negative impacts) of people who have taken one or two vaccination shots but who had not reached two weeks after the second shot (at which time they finally count as vaccinated). Other countries keep a separate Partially Vaccinated category the US refuses to track.

      Now, with the CDC’s recent definition change of fully vaccinated, any cases among the people who have gotten the two initial shots but not the booster will be blamed on the unvaccinated as well.

  5. Hairy says:

    Seat belts
    One reason given for mandating their use was that not wearing seat belts would put more first responders to accidents at risk.
    Child safety seats? Who has the right to mandate that? DC? States?
    When you decide to live in a society onside others you must give up some rights.
    No playing loud music at night!! No drunk driving! No making others sick by spreading diseases!

    • Dana says:

      Fortunately, seat belt scofflaws, a large group which includes me, can’t normally be seen, and we almost always get away with it. Even if we get busted, it’s an insignificant fine.

      Vaccine mandates? THe government is demanding the right to force people to accept an injection into their bodies that they do not want, at the cost of losing their jobs, and, in some countries, being herded into camps. The Salt Lake City Tribune Editorial Board wrote:

      Were Utah a truly civilized place, the governor’s next move would be to find a way to mandate the kind of mass vaccination campaign we should have launched a year ago, going as far as to deploy the National Guard to ensure that people without proof of vaccination would not be allowed, well, anywhere.

      I guess that they’d use their legal justification Korematsu v United States.

      I believe that we are having a crisis of non-reproduction of white babies. If I were to become President, ought I to have the authority to require that white women of childbearing age accept an injection of semen from white men, to increase the number of white babies born? Clearly that would be in the national interest, as defined by the President, right?

      Pregnancy is, after all, only a nine-month process, while the vaccines can have side effects which last for much longer, serious side effects, side effects which have, in some admittedly rare cases, been lethal.

      If you cannot see that as within the President’s executive authority, then maybe, just maybe, you can see why other people don’t see forced injections of the vaccine as within the President’s authority.

    • L.G.Brandon!, L.G.Brandon! says:

      Hairy, you have absolutely no concept of a free society and the notion of our limited government under our constitution.

      Hairy: “Seat belts
      One reason given for mandating their use was that not wearing seat belts would put more first responders to accidents at risk.”

      You can come up with a lame and weak reason for taking away almost any right, privilege or freedom. That is one of the lamest.

      Child safety seats? The state, not the feds. It says so in that damn constitution again. You guys are all big central government tyrants.

      Other than issuing driver licenses and harvesting Democrat votes do you think anything should be under state authority or must every piss ant thing from safety seats to loud music?

      BTW, we now know the Covid shot is not a vaccine and when you get it you are not immune from either getting nor spreading Covid. Therefore it is no longer your or the feds business. It never really was.

      Let’s go Brandon! More Americans to kill and maim with Covid shots that didn’t stop Covid.

      • Elwood P. Dowd says:

        TG Brenda,

        How many Americans have been killed or maimed by the Covid vaccines? Can you point us to even a few?

        OTOH, Covid has killed some 850,000 Americans, and injured many thousands more with “long Covid”.

        The vaccines reduce the contracting, spreading, hospitalizations and deaths.

        Unfortunately, extreme librarians and sovereign citizens live in a society where their actions affect others. And as a society we try to leave no one behind, so a citizen with brain damage from not wearing their seat belt receives care at everyone’s expense. One’s loud music is their own until it hits another’s ear drums.

        • drowningpuppies says:

          Rimjob: The vaccines reduce the contracting, spreading, hospitalizations and deaths.
          Have they? Where are the numbers?
          If so how come more people have died after the “vaccines” were introduced?

          Bwaha! Lolgf https://www.thepiratescove.us/wp-content/plugins/wp-monalisa/icons/wpml_cool.gif

        • Dana says:

          The distinguished Mr Dowd wrote:

          The vaccines reduce the contracting, spreading, hospitalizations and deaths.

          They do? The current evidence is that the vaccines do virtually nothing to reduce the contracting and spreading of the Xi Omicron variant. There ia a correlation with vaccination status and hospitalizations and deaths, but there have been more deaths attributed to COVID-19 since the vaccines became available than before.

          • Phil says:

            The large number of people I know who are vaxxed yet have gotten Omicron anyway almost all mindlessly repeat the mantra that “getting vaxxed was worth it because it kept me from getting a severe case or ending up in the hospital”.

            Meanwhile out of the other large number of people i know who never got the vax and also got Omicron, none of them have gotten a severe case or ended up in the hospital.

          • Elwood P. Dowd says:


            Over 2000 Americans are dying every day, ostensibly from Omicron. The arithmetic is pretty simple, a virus that is 40-fold less deadly but 40-fold more transmissible is still formidable.

            I personally knew of no one ill with the Delta variant. But I’ve learned of 11 relatives and friends with Omicron just this week. All but two vaccinated (one very sick 40-something and a 4 year old with the sniffles), but none hospitalized, thank the gods.

          • Elwood P. Dowd says:

            Dana: They do?

            Yes, at least according to experts.

            See Table 1.

            Pre-Delta: Unvaccinated 14 times more likely to be infected; 22 times more likely to die.

            Delta: Unvaccinated 9 times more likely to be infected; 16 times more likely to die.

            Omicron: Unvaccinated 3 times more likely to be infected; approx 20 times more likely to die (but low numbers for both).

            You likely noticed the protection against infection has dropped because of either time after vaccination, the development of new variants or a combination of both.

            Even with Omicron it appears from the data that one is better off being vaccinated.

            The vaccines are much safer than the disease.

            Did you see that Pfizer/BioNTech have initiated an Omicron-specific vaccine trial?

            Dana: there have been more deaths attributed to COVID-19 since the vaccines became available than before

            Hmmm. Yet the death rate for the vaccinated is much lower than for the unvaccinated, at least according to the data. Is it possible the increase in overall infections contributes to the overall number of deaths? The majority of Americans hospitalized, in ICUs and dying are unvaccinated, even though a majority of Americans are vaccinated.

            At least 250,964,433 people or 76% of the population have received at least one dose.

            Overall, 210,459,963 people or 64% of the population have been fully vaccinated.

            That still leaves over 100 million unvaccinated Americans contracting Covid at a high rate.

        • Dana says:

          Heaven forfend, we are at risk from “extreme librarians”! I guess that they’re going to throw the book at us! https://www.thepiratescove.us/wp-content/plugins/wp-monalisa/icons/wpml_yahoo.gif

  6. david7134 says:

    The seat belt issue was insurance agencies. They just use it to make more money. The government does not give a rats ass about individuals or first responders or if you live or die.

    • L.G.Brandon!, L.G.Brandon! says:

      In reality the seat belt issue should have been an insurance company issue but as usual the government stepped in to flex its muscles. Same with motorcycle helmets. Both of these could be handled quite easily by the insurance companies charging by whether or not you bought seat belts for your car and had them on in an accident. Same with helmets. That’s the way a society dedicated to freedom would respond to the issue. It’s up to the individual but he also suffers the consequences.

      Too many busy bodies. Too many Karen’s and too many Hairy’s, all of which think they should decide for everybody. I wish people would mind their own F’n business.

      Let’s go Brandon, new laws to write, more people to punish, more regs to mandate.

      • Dana says:

        It should be noted that many states which passed mandatory helmet laws for motorcyclists have since repealed them. Bikers don’t like helmets.

      • Elwood P. Dowd says:

        If bikers want to be human sacrifices that’s their right, as long as not one penny of tax money is spent on their rehab or long-term maintenance. No disability pay, no Medicare, no Medicaid. Same for those who refuse to bend to the will of the dictators by wearing seat belts or accepting the “dangerous” vaccines. Not one penny of the peoples’ monies. It may seem cruel to punish a severely injured child of freedom-loving anti-car seat parents, but that’s freedom for you!

        That’s the way a society dedicated to freedom would respond to the issue. It’s up to the individuals but they also suffer the consequences.

  7. L.G.Brandon!, L.G.Brandon! says:

    Dowd, like all leftists and communists you have no compassion or care about anyone with whom you disagree. All taxpayers are and rightfully be should be able to benefit from the taxes they paid into the system and especially the Medicare they paid all their working life to be covered.

    The way a society dedicated to freedom would respond would be to allow all of its citizens to share in that freedom equally even when Dowd hates them.

    I guess people who smoke/smoked, ever did drugs, used alcohol, were/are overweight, mountain climb or participate in any risky sport, hobby or business should be given the death penalty also. “Not one penny of tax money” should be spent to help anyone whose actions Dowd does not approve. In advance. But they still be required to pay those taxes.

    The managerial state is if nothing else a shameless copy of the USSR. You are all liars and potential murderers and should be treated that way.

    When the increasingly incompetent government fails to deliver even the most basic services, declare mandates without actually passing any laws and claim the last election was “the most honest and fairest ever” but we have to change the election laws or the next one won’t be then we all know we have reached peak bullshit with the so called experts. Odd how all the “experts” seem to be leftist Democrats and all on some government or NGO payroll and are increasingly wrong about their field of “expertise”.

    If someone like David Horowitz, who was in with the Weathermen and whose parents were card carrying Communists, can become one of the strongest voices for freedom and liberty, perhaps there’s hope for someone like Dowd. Perhaps.

    Let’s go Brandon, murder those damn people who refuse to get the “vaccine” that neither protects themselves or others from Covid. Let’s triple down on the lies because everyone is starting to realize YOU’RE ALL LYING DOG FACED PONY SOLDIERS!

    • Elwood P. Dowd says:

      T.G. Brenda!, T.G. Brenda!,

      We agree with you. Freedom loving Americans such as yourself should be able to live your freedom-loving life without the interference of Social Security, Medicare, Medicaid, SS disability being inflicted on you against your will. If you go flying through your windshield to prove you’re a patriot, godspeed! And be relieved that your dying body won’t be bothered by commie do-gooders putting you in a gov’t ambulance and paying for your treatment and year’s long convalescence. Freedom!

      No one is going to murder you unvaccinated folks, as nature and viruses are doing that anyway. And I agree with you that so many red state unvaccinated patriots are ending up in ICUs and morgues being paid for by the taxpayers. Wouldn’t it be more fair for the unvaccinated freedom-lovers to be excluded from public hospitals unless their PRIVATE insurance picks up the tab?? You don’t want no stinkin’ handouts!!

      Personally, I pay a lot of taxes and don’t begrudge freeloaders who use gov’t handouts, even hospitalization for Covid, but I surely don’t want to insult patriots by forcing gov’t supported health care treatments on them.

      And if it was up to me, I would in fact support paying for the care of a child injured in a car crash of patriotic parents eschewing safety seats and seat belts, but I don’t want to be accused of communist authoritarianism for forcing gov’t supported health care treatments on a child. Parents’ rights!!

      You seem to want the license to do any damn thing you want, but not the responsibility. Seat belt, safety seat, school mask mandates, vaccine requirements and helmet laws are all communofascist authoritarianism but you have a right to my taxes to pay for the outcome of your negligence.

      You are vehemently anti-US gov’t but feel entitled to US gov’t benefits. Got it. Regulations bad, free cash good. Got it.

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