Biden’s vaccination obligation is illegitimate: the US Supreme Court prevents Covid from also infecting the law
The Supreme Court of the United States of America has ruled on two controversial decisions taken by the Biden administration regarding vaccination obligations. In fact, in recent months, the Occupational Safety and Health Administration (OSHA) – an agency of the United States Department of Labor that deals with ensuring health and safety at work – and the Secretary of Health and Human Services have issued regulations with which vaccination is imposed, respectively, for workers employed in facilities with at least one hundred employees and for health professionals (in the event that their employer receives benefits from the Medicare and Medicaid programs).
The Court – which acted as a precautionary measure – blocked the effectiveness of the first program (with 6 votes to 3) and instead authorized the continuation of the second (with 5 votes to 4). What may appear to be a half-way victory for the administration is actually a defeat, since the most important obligation between the two was precisely that of "rejected". We will therefore focus our attention precisely on the latter.
It is appropriate to clear the field of an easy misunderstanding. In both cases, the Court did not deal with the substance of the obligation, that is, the constitutionality of subjecting the anti- Covid vaccine to a penalty of sanction. Instead, it focused on the question, apparently merely formal, of identifying the subject who has the power to establish such an imposition. To quote Justice Neil Gorsuch's concurring opinion , “the central question we ask ourselves today is: who decides? Nobody doubts that the Covid-19 pandemic has created problems for every American; or that governments, local and federal, all have a role to play in fighting the contagion. The only question is whether an administrative agency, located in Washington, which is in charge of overseeing safety in the workplace, can force vaccination. Or if, on the other hand, that task falls to local governments and democratically elected representatives who sit in Congress ”.
To this question, the Court replied that that authority is not vested in OSHA. "Congress is expected to express itself clearly when assigning to an agency the faculty to exercise powers of broad political and economic importance", the judges recalled, since, as Justice Antonin Scalia commented, it is assumed that " Congress does not hide an elephant in a rat hole ”. In this case, the ruling reads, the law gave OSHA the most limited power to deal with workplace safety, not the broader power needed to deal with public health issues. One could also argue – as in Italy it was stated with regard to art. 2087 cc – that the prevention of contagion from Covid is a question of safety relating to the workplace: however, for the Court, the law establishing OSHA does not refer to the dangers, it could be said, occasionally relating to the workplace (such as also undoubtedly it is contagion from Covid ) but to those necessarily connected to work performance (for example, precautions related to the use of dangerous machinery).
Against the minority's objections, the Court noted that “ Covid spreads at home, in schools, during sporting events and wherever people gather. This type of "universal" risk is no different from any other daily unknown that each of us faces. To allow OSHA to regulate these kinds of dangers – simply because most Americans are employed and exposed to them while working – means to greatly expand its regulatory power without clear congressional clearance. " Or, to quote Scalia, discover the elephant in the rat's den.
The Court has not ruled out that a vaccination obligation may be constitutional, provided that it is – first of all – adopted in the forms prescribed by law (this explains the "approval" of the vaccination obligation for health sector operators, although the opinion of the dissenters, according to which the rule attributing power poses critical profiles similar to that which emerged in the case of the "generalized" obligation). As Gorsuch pointed out, following in the wake of another and very important ruling made by the Court in the matter of evictions, “almost two years have passed since the beginning of this pandemic and vaccines have been available for more than a year. Over the course of this period, Congress passed several laws to deal with Covid-19 , but it never gave OSHA – or any other federal agency – the authority to set a vaccination requirement. In truth, a majority of the senators even voted for the abolition of the OSHA regulation ”. In short, concluded Gorsuch, in the face of parliamentary "unusability", "it seems that the agency has used its administrative initiative as a regulatory 'loophole'" (as, moreover, in a not fully aware way, it seems tohave admitted the Chief of staff of the Biden administration).
Although a protection, which is based on the "formal" aspect of the separation of powers and on the respect of the constitutionally prescribed forms for the adoption of certain measures, may seem insignificant, it must be reiterated that it is precisely in the fragmentation and distribution of competences between different subjects that the first defense of individual rights is identified. If an elected body, responsible in front of millions of people, fails to reach an agreement on decisions of drastic importance, it is not possible – in the name of efficiency – to let that choice be "usurped" by a subject who, as in the case of the director of OSHA, he must not convince anyone but himself. Indeed, not having to worry about building an adequate consensus, he has adopted a completely "unsuitable" obligation with respect to a criterion of proportionality between different levels of exposure to risk ("lifeguards and linemen were subjected to the same discipline reserved for doctors and workers in slaughterhouses ”, the Court commented).
A discourse on the separation of powers may perhaps be less persuasive in the Italian context, in which the use – and the abuse – of the decree law allows the executive to "evade" the times of deliberation and compromise in Parliament. However, even with the limitations of the emergency decree, one thing is that, precisely to remain on the subject of vaccination obligation, the choice is the result of a collegial assessment in the Council of Ministers, subjected to the scrutiny of the President of the Republic and to the parliamentary approval; another is that it could be, in hypothesis, unilaterally imposed by the Minister of Health, relying on the power to issue contingent and urgent ordinances. To return to Gorsuch's concurring opinion , “the question is not how to deal with the pandemic, but who has the power to do it. Complying with legal obligations can be tiring in times of crisis; but if this happened only in quieter times, the declarations of a state of emergency would follow one another without stopping and the freedoms, which the separation of powers inscribed in the Constitution aims to protect, would be reduced to very little ". Once again, it is a question of preventing Covid from also infecting the law.
The post Biden's vaccination obligation illegitimate: the US Supreme Court prevents Covid from infecting the law appeared first on Atlantico Quotidiano .
This is a machine translation from Italian language of a post published on Atlantico Quotidiano at the URL https://www.atlanticoquotidiano.it/quotidiano/illegittimo-lobbligo-vaccinale-di-biden-la-corte-suprema-usa-evita-che-il-covid-contagi-anche-il-diritto/ on Sat, 15 Jan 2022 03:47:00 +0000.