By W. Timothy Weaver, Ph.D.

There is no other way to put today’s decision. The professionals at OSHA estimated that mandating vaccines, and testing accompanied by PPE or mandatory mask wearing in the workplace would prevent 6,500 people dying from COVID—to say nothing of the untold lost days and long COVID illness that will also occur, and the overwhelming of hospitals. The CDC estimated in 2020 that mask wearing alone would have prevented 100,000 deaths. The OSHA order made mask wearing and testing mandatory if employees refused to be vaccinated. This mandate went out the window along with the vaccine mandate. This case was brought before omicron became widespread. Cases have exploded and 2,750 are dying each day. This is an unconscionable decision by justices who seemed fully unaware of, or wholly disinterested in the consequences of their action. 

Add to this unconscionable action the fact that Court had to find that OSHA lacked the authority to protect the workplace from “agents” that are plainly mentioned in the act that created OSHA—because these same agents appear in many places outside of work. On the contrary, Congress HAS already decided what authority and broad powers the agency has in urgent circumstances without naming SARS-Cov-2 as the agent it could regulate. Congress did not limit or prohibit OSHA regulations depending upon how many people OSHA mandates would impact. This is a construction of the Court. This is the Court inserting its authority for that of Congress and the executive.

Is this new doctrine of this Court a predicate for future rulings on the same issue—whether or not agencies can act on the authority already given them by Congress, or they need to go back to Congress each time and receive authorization in a case not experienced before? Each time a new agent appears, the Court would require OSHA to go to Congress for specific authority for regulating the workplace to prevent the spread of that new agent—in this case, SARS-Cov-2—or block the agency if that same agent also appeared outside of the workplace? 

The Court seems poised to deconstruct the authority granted by Congress to the executive’s agencies to write rules, and to act with broad authority. If the Court follows this construction of the law, the FDA, CDC, NIH, HHS, Agriculture, Medicare, Medicaid, FEMA, EPA and other agencies may see a wash of lawsuits questioning their broad authorities to regulate healthcare, the atmosphere, farming and food handling, industrial pollution and other matters of public interest. 

This seems like the first shot in a war against the federal administration of the laws. Will every agency of the federal government now be forced to go to Congress to enforce rules with every new emergency that arises? Is this to be the legacy of the Robert’s Court?

How is all of this possible? Transubstantiation.

To reach this ruling the Court ‘s majority first had to believe in “transubstantiation” to hold that mandating vaccines in the workplace was the same as engaging in regulation of public health, and then, and only then, could the Court find that public health regulation was beyond the scope of authority of OSHA. The concept of transubstantiation is an article of faith known to all Catholics as the way a wafer and vessel of wine become the body and blood of Jesus. In the case of SCOTUS, the transubstantiation of workforce regulation into public health regulation was apparently possible. The fact that five out of the six in the majority ruling are Catholics should surprise no one. The rationale for this conclusion is flimsy at best. 

The majority ruled that COVID preventions, including PPE, can’t be mandated because the virus is found everywhere and not just the workplace, and such a mandate impacts a lot of people. They argued it follows that OSHA lacks the authority to regulate public health and therefore they lack the authority to mandate vaccines or testing in the workplace. Let’s test that logic. We know that toxins are in the atmosphere and therefore every member of the public is exposed. The same is true of toxins discharged deliberately or accidentally into streams and rivers. It follows that everyone who drinks water might be exposed. 

Does this mean the EPA lacks the authority to mandate companies to stop polluting because such regulations would place them in the category of public health? What about mandating companies to protect workers from those same toxins when they are in the air of the workplace? Does the ruling mean that OSHA now lacks the authority to mandate that companies remove toxins in their workplace or compel workers to wear protective gear when those same toxins are found in the air generally? 

The majority on the Court apparently forgot to read the OSHA rules on workplace PPE. OSHA now mandates that all businesses must maintain a safe workplace, and in doing so are required to provide PPE to every worker who may be exposed to toxins in the workplace. Please see:…/files/publications/osha3151.pdf

<<For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408. It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.>> 

If this is the very heart of the majority decision, shouldn’t we at least expect them to be capable of elementary logic? It’s clear that conservative justices were uninformed about COVID, arguing in one case that it was like the flu spreading everywhere including workplaces. That was Gorsuch, who in an instance of profound arrogance did not wear a mask during the session, while seated close to the 83 year-old Justice Breyer. It’s apparent that these same justices lack critical thinking skills, especially when they are in a hurry to justify a decision they prejudged as political partisans—not as judges.

[livemarket market_name="KONK Life LiveMarket" limit=3 category=“” show_signup=0 show_more=0]