Terry H. Schwadron

Jan. 15, 2022

OK, the Supreme Court has spoken, blocking the White House order to businesses of more than 100 workers from taking Covid public health measures. 

In brief, the conservative Court majority found 6-3 that the law authorizing workplace safety doesn’t specifically discuss vaccines or anything like it. The ruling added note that even if it did, Covid happens outside the workplace as well as inside, and the Occupational Health and Safety folks have no right to safety rules outside the workplace.

There are remarks in the majority opinion that should trouble anyone expecting the federal government to address any emergency, basically warning “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it.”

My question is this: How are we now better off?

Even as Covid is once again surging through workplaces, cities and states, the Court – which itself has taken plenty of precautions about Covid — has taken away one of the main tools of vaccination. In focusing solely on literal language of statute, the Court majority was blind to the fact that we have oodles of workplace vacancies because we lack confidence that in-person learning is safe, prompting walkouts and withholding by teachers, nurses and others.

How are businesses whose outlets cross boundaries supposed to comply with whatever rules remain in place?

The Court made this a narrow legal issue to be solved without reference to its effects, focusing largely on who makes the call for any mandate.

It has suggested that the legally correct source of emergency health actions is not a health or workplace agency, but a permanently gridlocked Congress which is guaranteed not to act. Or, the Court says, we should depend on state’s policing powers when the reality shows a partisan split among governors who act actively blocking localities that try to enforce public health measures.

This is not only a Court that is remaking government powers but is doing so seemingly without a care for health or other effects of its narrow legal rulings.

Medical or Political?

The dissent opinion from the Court’s three liberals acknowledges that no statute could list all the medical or safety concerns that might arise in a pandemic but argues that the Court should not substitute its own judgment over OSHA’s and that public health dangers should demand a more realistic view of the effects of a ruling.

Essentially, the liberals saw mandates for vaccines, masks and distancing more akin to fire safety rules in the workplace than support for wild expansion of government power. They start and end their arguments in recognition of the actual Omicron contagion problem swamping our hospitals and affecting our workplaces, schools and homes.

The unsigned majority opinion called the OSHA order “a blunt instrument” affecting 80 million workers when the law governing workplace hazards did not justify doing so.  Further, the Court said failing to sort out some industries like meatpacking from others like landscaping for whom effects might differ.

The decision feels more political than medical, more aimed at curbing government powers than at helping to make it possible to contain Covid.

Indeed, some of the questions from conservative justices openly questioned whether vaccines carry any degree of risk.

The Court did allow a second challenge to survive, involving the mandate aimed at hospitals and clinics receiving Medicare and Medicaid Services money. But it was only because of the explicit language of the authorizing statute which allows rule-setting for health care staffers. Oddly, that is something that right-leaning media and speakers ignored totally in criticizing the Court for supporting any proposed Biden mandate.

Now What?

Away from the Court, the real world still struggles with the surge in Covid contagion. You’ve seen all the rising numbers, and the wishful thinking at the White House that the spiral will peak shortly.

What’s almost as appalling as the Court’s disregard for reality is the White House’s failure to have a Plan B ready to go in the event of an adverse Court decision.

Why didn’t Biden have an immediate telephone call or targeted message with business owners to persuade them to do what they can do about public health even without the OSHA law?

Even as Team Joe Biden is under water about providing too much Covid confusion in its policies, now add that employers now are on their own in what to do next. Of course, business owners in Florida and Texas are being encouraged by their governors to worry more about profit and services rather than about the health of their employees or consumers.

In short, this Court decision undercuts one of the most significant attempts to contain contagion and has left the country with uneven state laws and policies. It’s everyone for oneself.

At the same time, the drumbeat of frustration with a perceived failure by “government” to solve Covid, to make things normal and predictable again, continues to rise beyond loud. We’re seeing the effects in public fistfights over masks, in contentious, individual rebellion about following any rules whether for health or other.

It makes no sense to demand government to fix Covid and then take away the tools to do so,

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