Supreme Court conservatives are rendering Congress's authority moot

[bigtree]

...usurping the power of the national legislature to make laws.

President Biden's statement on the SC ruling against covid mandates on businesses:

"The Court has ruled that my administration cannot use the authority granted to it by Congress..."



https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/13/statement-by-president-joe-biden-on-the-u-s-supreme-courts-decision-on-vaccine-requirements/

[BeckyDem]

1. There are very deliberate reasons why there needs to be an expanded court.

Opinion: The Supreme Court isn’t well. The only hope for a cure is more justices.


By Nancy Gertner
and
Laurence H. Tribe

December 9, 2021

Nancy Gertner is a retired U.S. District Court judge. Laurence H. Tribe is Carl M. Loeb University Professor emeritus and professor of constitutional law emeritus at Harvard Law School. Both served on the Presidential Commission on the Supreme Court.

We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly.

One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court.

https://www.washingtonpost.com/opinions/2021/12/09/expand-supreme-court-laurence-tribe-nancy-gertner/

[budkin]

5. How would it ever happen with the current Senate?

It wouldn't.

[BeckyDem]

7. I would run on it for every political race.

“Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court,” said Chairman Nadler. “But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression, and I am pleased to join my colleagues in introducing the Judiciary Act of 2021.”

https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4508

[unblock]

2. I could be wrong, but I believe governments can require

Vaccines in schools for a dozen things provided they're not Covid
Hard hats
Safety vests
N95 masks to prevent workers from inhaling particles of things that aren't Covid
Pants
Shirts or bathing suits or something to cover up nipples
Testing for things like radiation exposure if you work in a radiation hot spot.


But they can't require testing for this particular thing or to get a vaccine for this particular thing.

Have I got that right?

[bigtree]

6. right

Captain Truth @TruthTeamOne 1h
How does SCOTUS rationalize OSHA having authority over bloodborne pathogens (29 CFR 1910.1030) like Hepatitis B & HIV, & airborne pathogens like tuberculosis, but not the airborne pathogen COVID?

Seems totally arbitrary from a workplace safety, medical, & scientific viewpoint.

Link to tweet

[kacekwl]

3. Oh by the way stop asking

what more can President Biden can do to mitigate the Covid crisis. Direct your question to any and every Republican in Congress on the Supreme Court, or on your street corner. This whole world is upside down. I'm quickly losing it big time.

[MichMan]

4. The court did not rule on a congressional passed mandate

as everyone is aware.

[bigtree]

8. what president Biden was referring to is the authority Congress granted OSHA

Last edited Thu Jan 13, 2022, 10:52 PM - Edit history (1)

...to regulate occupational hazards.

So no specific guidance from Congress on this specific virus, but certainly has provided guidance on workplace risks and dangers.

[MichMan]

9. Do you think if congress passed a vaccine mandate not linked to OSHA that it would have been upheld?

It would have been a totally different legal argument.

It appeared that the basis for the ruling was that a vaccine mandate was overly broad and not within the scope of other OSHA rules.

[bigtree]

10. OSHA doesn't require anyone to get vaccinated

...here's what OSHA is 'mandating.'

Large and medium-size employers (it covers only those with 100 or more workers) have the OPTION to require unvaccinated workers to wear a mask on the job and test negative for COVID-19 at least weekly. They can also require those workers to do their jobs exclusively from home. Or the employer—not OSHA—can insist their workers get vaccinated.

I'd like to know how anyone would expect Congress to 'mandate' this outside of OSHA. The requirements are basically self-enforcing, and OSHA has always made room for and time employers to comply when violations are cited.

My concern is that the Supreme Court has just decided the limits of those protections OSHA is charged with, not Congress, which has provided a clear doctrine of engagement with businesses and guarantees of protections for workers from unseen and known dangers alike.

It's just unconscionable to carve out an exception for these specific protections, especially since there is an non-invasive alternative to vaccines offered. Trying to wrap my head around where the Court draws the line, and what medical authority does it use to determine where to cut off protections for workers. OSHA is more than clear:

OSHA requirements apply to preventing occupational exposure to SARS-CoV-2.

Among the most relevant are:

OSHA's Personal Protective Equipment (PPE) standards (in general industry, 29 CFR 1910 Subpart I), and, in construction, 29 CFR 1926 Subpart E), which require that a PPE hazard assessment be conducted to assess workplace hazards, and that PPE, such as respiratory protection, be used when necessary.

When respirators are necessary to protect workers, employers must implement a comprehensive respiratory protection program in accordance with the Respiratory Protection standard (29 CFR 1910.134).

The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1), which requires employers to furnish to each worker "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."

OSHA's Bloodborne Pathogens standard (29 CFR 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may contain SARS-CoV-2 (unless visible blood is present). However, the provisions of the standard offer a framework that may help control some sources of the virus, including exposures to body fluids (e.g., respiratory secretions) not covered by the standard.
State Standards

There are 28 OSHA-approved State Plans, operating statewide occupational safety and health programs. State Plans are required to have standards and enforcement programs that are at least as effective as OSHA's and may have different or more stringent requirements.

The California Division of Occupational Safety and Health (Cal/OSHA) Aerosol Transmissible Diseases (ATD) standard is aimed at preventing worker illness from infectious diseases that can be transmitted by inhaling air that contains viruses (including SARS-CoV-2), bacteria or other disease-causing organisms. While the Cal/OSHA ATD standard is only mandatory for certain healthcare employers in California, it may provide useful guidance for protecting other workers exposed to SARS-CoV-2.

Employers must also protect their workers from exposure to hazardous chemicals used for cleaning and disinfection. Employers should be aware that common sanitizers and sterilizers could contain hazardous chemicals. Where workers are exposed to hazardous chemicals, employers must comply with OSHA's Hazard Communication standard (in general industry, 29 CFR 1910.1200), Personal Protective Equipment standards (in general industry, 29 CFR 1910 Subpart I, and, in construction, 29 CFR 1926 Subpart E), and other applicable OSHA chemical standards.

https://www.osha.gov/coronavirus/standards

[crickets]

11. Excellent post. nt