The Supreme Court and COVID: Depressing

January 8, 2022

The U.S. Supreme Court and COVID: Depressing

supreme court covid

Mark Rubin

The Supreme Court and COVID: Depressing

Let’s be clear: the U.S. Supreme Court has not ruled in NFIB v. OSHA, No. 21A244 and Biden v. Missouri, No. 21A240. Pigs might fly, too – like the one who lives in the wooden frame on the wall in my family room – and and the Court might uphold the OSHA and Centers for Medicare and Medicaid Services regulations. (Leigh’s known the pig longer than I have – polite-speak for, It’s hers – and she assures me, from time to time, that it’s not a photo.)

The NFIB Case

The NFIB case involves an OSHA regulations that requires vaccines or a masks and testing regimen for all employers with more than 100 employees. No way, suggested the six-member majority, as its constituents questioned the lawyers. Why? Several reasons.

Congress must provide explicit directives to OSHA, because … well, who knows. In 1970 Congress pass the Occupational Health and Safety Act and stated: Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” In the law world, the quoted language more than adequately authorizes OSHA to take action to insure that people get vaccinated / wear a mask and get tested, or stay home from work.

But, Congress! With no authority, the Court majority suggested that, on this occasion only, agency action fails because Congress must address the specifics.

(For decades I’ve heard, mostly from Rs, we need to run this country like a business, and need a POTUS who ran a company. Leaving aside all of the problems with the notion, if we compare our governmental structure to a business, the president is the Chair/CEO, Congress is the Board of Directors, and the agencies run the place. In no company with which I have been involved would the B of D get involved in the details of things like addressing a pandemic.)

It’s too broad, was another trope. Okay if it captured 500+ employee employers? 1000? Only brown-eyed women between 30 and 42 who worked for companies with a Z in their names?

The states. Shouldn’t the states handle this? Sure. I mean who cares, if someone has the lick of sense we need to deal with an effing pandemic. Except, wait? Don’t larger companies often do business in multiple states? If we’re burdening large companies, don’t we burden them even more with conflicting regimens from state to state? (Maybe that’s the point: destroy the directive with differences.)

The Healthcare Worker Case

Biden v. Missouri addresses health care workers, mandating vaccines for those who work for health care organizations that receive Medicare or Medicaid funding. Authority for this mandate? “He who pays the piper calls the tune.”

The healthcare mandate presented more challenges. But these people – the justices – don’t lack creativity. When healthcare facilities accepted the money, did they expect a vaccine mandate? Prob’ly not, at least before January 2020, but … so what. Vaccines carry risks. Sure, but COVID does too. When almost all of the deaths in 2021 involved unvaccinated people, shouldn’t that matter? Blah, blah, blah!

I am 64. I got vaccinated a bunch of times as a child. Like almost all of us, including most of today’s anti-vaxxers and, surely, the members of the Court. We grew up healthy, mostly, and benefitted greatly from vaccine regimens.

We benefit from modern health care, too. And our modern conveniences, including a going and blowing economy that allows tens of millions of us to want for damn near nothing.

Despite what modernity gives us, too many, too often revere our early agrarian systems. In 2022, the most advanced nation in the world, ever, can’t function successfully with 50 sets of laws to address a national crisis. We can’t function successfully when members of our highest court put forth the kind of nonsense we heard at the oral argument on the two cases. Most of all, we can’t function successfully when one party venerates the individual so greatly that community responsibility becomes one of those squishy Lib values we must stamp out to, so they claim, Make America Great Again.

Maybe the United States of America will survive what Richard Nixon and Ronald Reagan gave us, and Former Guy melded into a Frankenstein-like monster. Or not. Having followed the U.S. Supreme Court oral arguments on Friday, January 7, 2022, I’d put money on: Or not.

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