Margot Cleveland of the Federalist shares her disappointment with a recent argument at the U.S. Supreme Court.
All the petitioners needed was for the Supreme Court to enter a stay to prevent the Occupational Safety and Health Administration vaccination rule from taking effect, but, truly, was it too much to ask for a defense of limited government, separation of powers, and federalism?
Apparently so, because on Friday, over more than two hours of argument in National Federation of Independent Business v. Department of Labor, lawyers pushing the Supreme Court to delay the regulation circled and sidled rather than state clearly that the rule, OSHA, the Biden administration, and the entire federal government represented a mockery of our constitutional order. …
… With all of the ammunition provided by the dissenting judges in the Sixth Circuit, as well as the Fifth Circuit’s original opinion entering the stay, one would think that when the Supreme Court fast-tracked the case for oral argument, the attorneys seeking the stay would stress the grave attack the ETS represents to our constitutional republic. But they didn’t.
Instead, Scott Keller, counsel for the National Federation of Independent Business, argued “OSHA’s economy-wide one-size-fits-all mandate covering 84 million Americans is not a necessary, indispensable use of OSHA’s extraordinary emergency power which this Court has recognized is narrowly circumscribed.” …
… The breadth of the OSHA rule and its effects on two-thirds of private businesses also threatens the “system of government ordered by the Constitution,” that gave all legislative powers to Congress. The resulting “nondelegation doctrine constrains Congress’s ability to delegate its legislative authority to executive agencies.” …
… The justices—and Americans—needed to hear these points because COVID has become both the excuse and the case study for authoritarianism. And from OSHA’s most recent rule, we might divine the civil corollary to the “Show me the man, and I’ll show you the crime,” motto, and it seems to be, “Provide me a public interest, and I’ll find the power.”
