Sunday, January 16, 2022


 Weekly Opinion Editorial

by Steve Fair


     On Thursday, the U.S. Supreme Court(SCOTUS) ruled unconstitutional President Joe Biden’s executive order requiring large businesses(more than 100 employees) to insure their employees were vaccinated and tested.   

     "Although Congress has indisputably given Occupational Safety and Health Administration( 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," the majority opinion said.  The vote was 6-3 with the three liberal justices-Breyer, Sotomayor and Kagen- dissenting. 

     In the minority opinion, the three wrote:  "When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions," they wrote. "Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible."

     In a second ruling regarding vaccine mandates, the SCOTUS allowed the Centers for Medicare and Medicaid Services to require health care workers to be vaccinated at facilities that receive federal monies.  In that case, the vote was 5-4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the three liberals (who vote as a block) to form the majority. 

     The majority opinion concluded the Secretary of Health and Human Services(HHS) routinely imposes conditions of participation (COPs) relating to the qualifications and duties of healthcare workers.  They said the vaccine mandate fell into the duties of HHS. Three observations:

     First, the SCOTUS got the OSHA ruling correct.  Telling private employers, the conditions of employment (COPs) for their employees is not a function of the federal government.  The feds are already overregulating private business to death.  Establishing guidelines on workplace safety is why OSHA was created in 1970, but requiring employee jabs has never been a function of that agency.  Biden’s executive order was over the top- even for the federal government.

     Second, the SCOTUS got the HHS ruling wrong.   Holding hospitals hostage by withholding federal monies if workers don’t get vaccinated is nothing short of extortion.  Healthcare workers should have the same liberty and choice as the private sector employees in the OSHA case.  They should be allowed to make up their own mind about the vaccine in the same way.  This ruling will create more pressure on the health care system in the U.S. as hospital operators across the country expect it will create manpower shortages. 

     Third, the spilt decision by the SCOTUS on similar cases is puzzling.  Why did Justices Roberts and Kavanaugh vote for liberty for some Americans, but not others?  They cited the authority/mission of the federal agency-HHS- as their justification for requiring the jab for healthcare workers.  Were the ‘rights’ of Americans working in the healthcare sector considered?  It appears not.  When the high court places the duties/mission of a federal bureaucratic agency over the rights of individual Americans, they are violating their commitment to rule based on the Constitution.

     America’s republic system of self-government empowers individual citizens.  The United States government is given power by the people, not the other way around.  The founding document- the Constitution- is the rule book.  It states every American has the right to life, liberty and the pursuit of happiness.  When a citizen’s rights or liberty is taken away- for whatever purpose- it violates the rule book.  When the liberty of one is taken away for the overall good of the whole, America ceases to be America.      

1 comment:

James L. said...

"Why did Justices Roberts and Kavanaugh vote for liberty for some Americans, but not others?"

It's easy to see that, Steve, but I don't see your mention of it anywhere in this post. Was that intentional? I'd like to think so.

You see, Steve, healthcare workers are subject to a different, stricter set of regulations than your run-of-the-mill private businesses. The regulations for healthcare workers are a complicated matrix of what boils down to fixing problems as they emerge. Most laws abide by that principle, and I think you can agree that not every law or policy is perfect at its first approved draft.

Even the U.S. Constitution, which you are very fond of considering the contents of your blog posts, has had its amendments, including one controversial amendment that repealed another one set just years before. Just that in itself could be a demonstration of how the federal government and the bodies within can change their stance based on the general public's response as well as scientific evidence.

Has the federal government made mistakes? You and I both could agree on that. Even in recent years, as with the pandemic, the agencies regulating health and human services have at times steered the American public in the wrong direction. In the early days of the virus' entry to the country, the CDC recommended not wearing masks as a means to ration the supplies of N95 masks to healthcare workers. The CDC would soon reverse their position due to the aggressive hold the pandemic took on not only on the U.S. but the whole world.

Working in healthcare, especially during the COVID-19 pandemic, is a crucial endeavor. Stories upon stories can be told from those who have witnessed the pandemic's late-stage effects firsthand, and neither you nor I can truly know what it's like to be on the front lines, day after day, in this chapter of history. Those healthcare workers have seen tragedy after tragedy unfold before their eyes.

Personally, I'd like to thank every healthcare worker for their efforts in containing and treating the victims of the pandemic. That being said, it's my opinion that those in healthcare facilities should not only provide services to the affected but also practice the safest approaches to the handling of the virus within their own bodies, specifically with vaccinations.

Hospitals and other care facilities who do not have a baseline standard for hiring workers who believe in the science behind virology should be deeply encouraged to exclude employment candidates who do not practice established personal health awareness for their own bodies. That's it. Full stop.

Oh, and before I forget, the healthcare facilities in the Supreme Court question are those who accept Medicare, a federal program, so it really has nothing to do with the states, which is enforced in the Constitution.