Wild Exaggerations

The Supreme Court last week ruled against Biden’s vaccine mandate for large companies, but upheld it (barely) for health care providers.

The reaction on both left and right shows how politicized our society has become. And suggests we’ve completely forgotten the role of the Supreme Court.

Take this article for example, at the Washington Post, which cast the decision as partisan reactionism against Biden that should be unthinkable in light of the fact we’re on track to hit a million covid deaths before summer. And that the Supreme Court was giving itself an “expansive set of logical tools” that would enable them to do “whatever they want in future cases”.

On the right, we have widespread celebration that Biden’s “unconstitutional mandate” was shut down by the Supreme Court, alongside condemnation of justices Roberts and especially Kavanaugh for upholding it in the case of health care workers. Tucker Carlson, in particular railed against him, calling Kavanaugh a “cringing little liberal” for giving in to political pressure (Source).

The problem is both sides are wildly exaggerating what happened.

The left can certainly make a case the decision was at least partly partisan, and the reasons given against the mandates a bit strained. But it is to be expected that the more conservative justices would be ideologically inclined to stick to a more literal, limited reading of the law. If you study their decision carefully, they simply argued that the law governing OSHA did not extend to this level of government intervention, whereas the law governing the Department of Health and Human Services did. Some justices disagreed on both these points, obviously, but there’s little evidence they were establishing some new right to simply make up their own laws. They were simply attempting to interpret the laws through their respective judicial lenses.

And yes, Roberts and Kavanaugh sided with the more liberal justices on one decision, but not necessarily because they were pressured to do so. (How do you pressure a Supreme Court justice with a lifetime appointment?) They simply read one statute as justifying a mandate, and the other as not. The idea Biden’s mandate was unconstitutional was never an issue. Justice Thomas himself, writing against the health care mandate simply said “If Congress had wanted to grant [the government] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.” In other words, it wasn’t unconstitutional, just not within the scope of existing law.

Clearly, some people believe strongly a vaccine mandate is important, and urgently needed. Others choose to see it as excessive or oppressive. But that kind of moral decision making is not really the role of the Supreme Court. Its job is first to decide whether or not a law is within the scope of the constitution. And then second (which is what happened here) to decide if executive actions fall within the scope of existing law. Rather than making wild accusations about a new kind of judicial activism, or that justices were caving into liberal pressure — they were simply doing what they were supposed to do. Like it or not, they made a decision.

Personally, I think their decisions were reasonable. The law regarding OSHA allows the Labor secretary to issue “emergency temporary standards” without the normal regulatory process if it deems employees are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful”. One could argue this extends to something like covid, which is certainly hazardous — but it could also be argued that vaccine mandates go beyond the intent of the law which was to regulate workplace issues. In other words, OSHA was not intended to be a backdoor to enforce nationwide public health policies.

The health care mandate fell under separate legislation which allows the HHS Secretary “to impose conditions on the receipt of Medicaid and Medicare funds that the Secretary finds necessary in the interest of the health and safety of individuals who are furnishing services.” In this case, the language seems somewhat clearer, and that clearer language was enough to persuade two justices. Though clearly, others felt even this law wasn’t intended to be a backdoor for nationwide vaccine mandates.

As dangerous as covid is, the Supreme Court was simply saying, decisions on something as important as vaccine mandates should be decided by the representative will of the people through the voice of congress. And that we should be careful about reading into past legislation new powers not originally intended.

In an ideal world, the court is suggesting, the two parties should come together in a crisis and try to find some reasonable, compromise solution: for example, a bill that allows vaccine mandates, but accepts proof of natural immunity instead for those with prior infections. Or with certain guaranteed exemptions. Or combined with certain incentives to boost the economy. That’s how government is supposed to work — negotiating together a solution.

Granted, there’s no reason to hope a gridlocked congress can do anything remotely close to common sense. But the Supreme Court is right that decisions should be made in the body closest to the people. The problem is not with the Supreme Court, or even the executive branch for attempting to implement these laws in a plausible way, as they did. It’s with congress for being unwilling to address the crisis directly and do what is best for America, first and foremost.

The Bible suggests something similar. While speaking about God’s people, it emphasizes the blessings that come when we work together: “How good and how pleasant it is for brethren to dwell together in unity” (Psalms 133:1). Sadly, as a result of our inability to work together, we will indeed have lost a million American lives before long.

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