January 13 was a noteworthy if confusing day for the U.S. Supreme Court. In National Federation of Independent Business v. Department of Labor, Chief Justice John Roberts and Justice Brett Kavanaugh joined Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett in opposing the Occupational Safety and Health Administration’s rule that large employers must compel workers to take mRNA vaccines or face steep penalties. The rule, the justices said, was unlikely to pass constitutional muster.
The very same day, in Biden v. Missouri, Roberts and Kavanaugh joined Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan in supporting a Department of Health and Human Services mandate that Medicare- and Medicaid-reimbursed facilities must compel workers to take mRNA vaccines or face steep penalties. That rule, the justices said, was likely to pass constitutional muster.
In both cases, the majorities reached these opinions by systematically considering only narrow grounds.
In National Federation, the justices said Congress didn’t clearly authorize OSHA to significantly encroach upon the lives and health of 84 million employees.
In Biden v. Missouri, the justices said Congress did clearly authorize HHS to encroach upon the lives and health of 10 million healthcare workers.
Legally, all nine justices ignored the Constitution’s principle that life and liberty are unalienable, which would not even allow informed consent where such consent would definitely forfeit some persons’ life or health.
More simply, all justices ignored the Constitution’s bedrock requirement of liberty, which would require informed consent. Also, majorities of justices ignored the Constitution’s bedrock requirement of non-delegation of legislative power by Congress to others.
Simply supporting the Constitution would have produced opinions that were correct morally and legally.
Instead, here we are.
Choosing to formulate opinions on knife-edge narrow grounds (on what legislative powers Congress delegated) rather than on fundamental constitutional principles (that Congress may not delegate any legislative power) puts the unprincipled justices’ cognitive dissonance nakedly on display.
This dedication to blind injustice not only makes life, liberty, and property insecure for 10 million healthcare workers but also now makes it more uncertain whether life, liberty, and property will be secure for everyone.
The Great Depression’s great duration was caused by uncertainty about whether property would be secure. This regime uncertainty was produced by a major delegation of legislative power, by soak-the-rich taxes, by government-advocated unionization, by emergency central-planning power, and by Supreme Court self-neutering.
The COVID depression has been caused by uncertainty about whether life and liberty as well as property will be secure. This new regime uncertainty has been produced by suppressing existing treatments, suppressing fast home tests, imposing lockdowns, borrowing and spending, ignoring state legislative requirements for voting, and imposing genetic-vaccine mandates.
In a single day, opposing the use of unconstitutional absolute power against 84 million employees but supporting the use of unconstitutional absolute power against 10 million healthcare workers ratcheted up the present regime’s uncertainty.
But then the next day, Florida Governor Ron DeSantis said no. The HHS rule requiring facilities to compel healthcare workers to take vaccines won’t be enforced by the government of Florida.
In Florida, the laboratory for freedom is working.
Let every jurisdiction’s voters weigh-in, in this election and in the elections to come, that they want the Constitution followed in their jurisdictions, too.