Let’s be clear what the issue is here. The issue before the court is not whether vaccination is good or bad. All nine of the Justices have been fully vaccinated and have also received boosters (as I have). It’s fair to conclude that the Justices all think vaccinations are good, at least for people of their demographic.
Nor is the issue whether state or federal government can impose vaccine mandates on the population. They probably can, and occasionally have. In oral argument yesterday, Justice Gorsuch noted in passing that he recently rejected a challenge to a vaccine mandate imposed by the state government of New Mexico. Similarly, Congress could pass a law imposing a vaccine mandate or authorizing the Executive Branch to impose one.
What’s at issue in this case is much narrower. It’s whether the Executive Branch via the Occupational Safety and Health Administration (“OSHA”) can impose vaccine mandates without specific authorization from Congress.
The six conservative justices signaled that they think the answer is no.
Consistent with the ongoing politicization of COVID, oral argument yesterday descended into a cafeteria food fight of hysteria, half-truths and untruths. Justice Breyer implied that because the daily new cases of COVID were now about 750,000, tossing out the OSHA mandates would mean that 750,000 people a day would contract the disease who otherwise wouldn’t – as if the mandate would instantaneously eradicate the disease. Justice Sotomayor suggested that 100,000 children were “in serious condition or on ventilators.” The Department of Health and Human Services says the actual number is only a few percent of that.
In contrast, the six conservative Justices focused not on the disease but on the legal and Constitutional authority of the Executive Branch to impose the OSHA mandates. That’s as it should be. The Court’s job is not to figure out whether vaccine mandates are good or bad, but to figure out whether the government has the right to impose them in the way they did.
It’s not as if mandates are unavailable to fight the pandemic. The Justices confirmed that Congress could impose or authorize mandates, and states could do the same at the state level, as some have.
The response of the liberal Justices to this point – if they were to make a response, which they didn’t – would be, yes, but these mandates are important tools and the states are being inconsistent in imposing them and Congress has failed to act.
Maybe that’s all true. But a failure of the political system does not justify circumventing it. Down that path lies tyranny.
Glenn K. Beaton had a career in law, including practicing at the Supreme Court