Vaccine Mandates

THOMAS MCARDLE was a White House speechwriter for President George W. Bush and writes for IssuesInsights.com. Thomas McArdle

Preferring Bureaucracy to Democracy

3 left-leaning justices’ trust in the judgment of bureaucracies is staggering

Much attention is being given to the Supreme Court’s reining in of the Biden administration’s overreach in its mixed rulings on Jan. 13, which blocked the Occupational Safety and Health Administration’s (OSHA) vaccine mandates on private companies with over 100 employees but allowed the mandates that apply to health care workers at facilities that receive Medicare and Medicaid funding.

What shouldn’t be overlooked, however, was the chilling peek into the mindset of the left that was provided in the Democratic-appointed justices’ dissents.

OSHA was established in 1970 to keep workplaces free of hazards such as toxic chemicals, harmful noise levels, mechanical dangers, dangerous extremes of temperature, and unsanitary conditions. It wasn’t intended to address an infectious disease spreading through the general population, and OSHA’s legislative architects couldn’t have foreseen COVID.

But the left wants bureaucracies to have maximum leeway and minimum democratic accountability. They want maximum—if not exclusive—federal involvement and direction, and a minimum state and local self-governmental role.

In their dissent, Justice Stephen Breyer, appointed by President Bill Clinton, and Justices Sonia Sotomayor and Elena Kagan, both placed on the high court by President Barack Obama, said of their six colleagues in the majority, “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

At work here is the judicial doctrine of “Chevron deference,” dating from a 1984 Supreme Court ruling on environmental regulations. Liberal Justice John Paul Stevens’s decision stated that “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute”—in other words, extreme deference to federal agencies’ judgments of the extent of their powers.

The justices’ bias toward and trust in the judgment of the bureaucracies is staggering. They remark that “as long as the pandemic continues, so too does the risk that mutations will produce yet more variants—just as OSHA predicted before the rise of Omicron.” So OSHA is, apparently, a medical authority.

The choice in the eyes of Breyer, Sotomayor, and Kagan isn’t between governmental regulation and personal liberty but between the various sectors of the federal government leviathan.

The three justices write: “Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”

“The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy ... informed by a half-century of experience and expertise in handling workplace health and safety issues,” they argue.

Apply this to an individual patient. Imagine a government bureaucrat informing you that “the agency has thoroughly evaluated the risks [of] the disease” you have contracted, and that it has decided on your course of surgery and medicinal treatment.

That the left-leaning justices have little shame in utilizing politicized, incendiary rhetoric in the public eye in service to optimum federal power was at its most blatant in Sotomayor’s false assertion during oral arguments on Jan. 7 that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators” and that “Omicron is as deadly as Delta.” Even sympathetic media outlets swiftly pushed back, with The Washington Post’s fact-checker bestowing four Pinocchios.

Not to be outdone, Kagan asserted that workers “have to get vaccinated so that you’re not transmitting the disease,” despite the vaccinated transmitting and contracting Omicron like crazy; and Breyer contended that there were “750 million new cases”—over twice the population of the United States.

It all serves as a grave reminder that had Senate Republican Leader Mitch McConnell and President Donald Trump not prevented what would have been a 7–2 left-leaning majority in the Supreme Court (assuming Chief Justice John Roberts would often vote left of center), there would now be no check on the federal government’s control over individuals and businesses, in sharp defiance of the constitutional foundations of America’s freedoms.

The choice in the eyes of Breyer, Sotomayor and Kagan isn't between governmental regulation and personal liberty but between the various sectors of the federal government leviathan.