And so I’ll punt to law prof Jonathan Turley—because he says what I want to hear. But also because what he says is based on sound constitutional principle, and because it takes note of the growing scholarly and judicial concern over the metastatic federal administrative state. From a jurisprudential standpoint that’s what the mandate case is about. The case will be argued January 7. Turley offers this brief discussion in the context of
The SCOTUS has a case on this year's docket that involves government agency rules.
I happened upon this Turley article posted yesterday that discusses the significant cases the court will hear. Turley writes: "While not often discussed with the “matinee” cases of the term, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health."
Thanks for pointing this out. First, let me clarify. The mandate case in front of the SCOTUS currently is about the stay on the mandate--so the Court can simply agree with the lower courts and keep the stay in place pending further litigation. IOW, it would keep the mandates on hold. What that would mean is that the SCOTUS is agreeing with the lower courts that the mandate looks like a loser--but without pronouncing that judgment before trial.
Now, re the case against Becerra (AHA v. Becerra), it's not about "agency rules" as such. It's about judicial deference to agency interpretations of statutory provisions. The courts have, since Chevron, given deference to agency interpretations of statutes like that--the agencies are presumed to be dispassionate "experts". Chevron was a SCOTUS case, so that rule of deference is binding on the lower courts. That "Chevron doctrine" is what Turley says Alito and Gorsuch are "gunning for." I think there is a majority, but Turley knows better and is being cautious. However, the fact that, as Turley notes, "the court has accepted a variety of other cases that could curtail agency authority" is a very strong indication that a major change is afoot.
So, AHA v. Becerra is NOT about "agency rules" as such. It is, however, about the degree of deference that courts need to give to agency "expert" interpretation of federal statutes. In other words, it could untie the hands of lower courts to challenge agency interpretations, encouraging private parties to bring lawsuits over such interpretations.
I'd still like to see these mandates addressed on a substantive basis, on the constitutional issues of due process and rights to bodily integrity and personal healthcare decisions.
Is there any impact of a SCOTUS win on local mandates? Here in NYC they just instituted a vaccine mandate on all private employers. All though executive order. I don't know why the business community has not yet put up any kind of a fight, but this doesn't bode well for freedom and a return to normal.
Technically not, since this case is a strictly federal one. Each state has their own laws governing what's going on that would need to be challenged and are based on the old Jacobson case. However, if the SCOTUS expresses hostility/skepticism to the reasoning of Jacobson--even though it's not really applicable in this OSHA case--that would be an invitation to challenge all mandates.
So, should the SCOTUS find against the federal government's use of OSHA as the administrative agency tool to inflict nonconsensual medical vaccinations upon workers for 'workplace safety,' how does SCOTUS get to a broader beat down of the administrative state using this case? There are other more deserving out of control agencies than OSHA that need to be hamstrung with the EPA, Dept of Energy, Education, and the IRS at the top of my list.
It depends on how they go about this case. Assuming they knock down the OSHA mandate, do they do it on a narrow basis--tailored to the specific facts of this case? That would probably be easy for them, because most people agree this is clear overreach by OSHA. However, would they use the case to lay out broad principles on the degree of deference to be given to administrative rules and regs? If they do, lots of rules would be challenged quickly and would be decided by lower courts. If they don't, it could be a long process waiting for the "right" case.
CTD, you wrote: "Very narrow rulings only invite more litigation. It's taking the easy way out."
But that, in a nutshell is CJ Roberts' judicial philosophy, which to this point, he has been able to enforce on the Court's decisions. The epitome of the easy way out.
- Only incremental changes;
- No sweeping decisions creating new law;
- Go along to get along;
- Keep those cocktail party invitations coming;
- Fend off court packing; and, perhaps most important to Roberts personally;
- Keep the flagrant illegality of his adoption of two Irish orphans through a South American country under the rug.
What I mean is this. My understanding of this case is that it's not so much about the rightness or wrongness of mandate requirements in themselves. The issue is whether OSHA (prodded by the regime) has overstepped it's authority as defined by statute. Thus, the SCOTUS could strike down the mandate as administrative overreach--beyond the scope of OSHA's statutory authority--without actually deciding on the mandate itself. Remember, the reason this "workaround" was adopted was because our federal system doesn't actually give the regime the authority to impose such mandates on the states. Again, that's why even Zhou admitted it's up to the states.
The "right" case might be an appeal from a state or local mandate in which the issue would very directly be something like due process under the 14th amendment--was the required injection an unconstitutional deprivation of liberty, for example? Something along those lines. Still, the SCOTUS could address the substance and give a clear idea of how they would treat appeals from the states that are based on due process under the 14th amendment.
That said, there is an opening for the SCOTUS to get into the substance of the mandate without transgressing 'judicial restraint'. There is a super strong argument that the mandate as proposed by OSHA oversteps workplace safety and gets into matters involving personal autonomy and healthcare choices. These are complex areas, but the experimental character of these injections does seem to invite court action. No court yet, that I'm aware of, has taken up that angle.
The SCOTUS has a case on this year's docket that involves government agency rules.
I happened upon this Turley article posted yesterday that discusses the significant cases the court will hear. Turley writes: "While not often discussed with the “matinee” cases of the term, one case on the docket could bring sweeping impacts across various areas — from the environment to financial regulations to public health."
https://thehill.com/opinion/judiciary/587837-buckle-up-2022-is-going-to-be-a-big-one-for-the-supreme-court
Thanks for pointing this out. First, let me clarify. The mandate case in front of the SCOTUS currently is about the stay on the mandate--so the Court can simply agree with the lower courts and keep the stay in place pending further litigation. IOW, it would keep the mandates on hold. What that would mean is that the SCOTUS is agreeing with the lower courts that the mandate looks like a loser--but without pronouncing that judgment before trial.
Now, re the case against Becerra (AHA v. Becerra), it's not about "agency rules" as such. It's about judicial deference to agency interpretations of statutory provisions. The courts have, since Chevron, given deference to agency interpretations of statutes like that--the agencies are presumed to be dispassionate "experts". Chevron was a SCOTUS case, so that rule of deference is binding on the lower courts. That "Chevron doctrine" is what Turley says Alito and Gorsuch are "gunning for." I think there is a majority, but Turley knows better and is being cautious. However, the fact that, as Turley notes, "the court has accepted a variety of other cases that could curtail agency authority" is a very strong indication that a major change is afoot.
So, AHA v. Becerra is NOT about "agency rules" as such. It is, however, about the degree of deference that courts need to give to agency "expert" interpretation of federal statutes. In other words, it could untie the hands of lower courts to challenge agency interpretations, encouraging private parties to bring lawsuits over such interpretations.
I'd still like to see these mandates addressed on a substantive basis, on the constitutional issues of due process and rights to bodily integrity and personal healthcare decisions.
Federal agencies have actually become a 5th branch of Govt. A subset, the Intel agencies coupled with Big Tech are the 4th branch.
Is there any impact of a SCOTUS win on local mandates? Here in NYC they just instituted a vaccine mandate on all private employers. All though executive order. I don't know why the business community has not yet put up any kind of a fight, but this doesn't bode well for freedom and a return to normal.
Technically not, since this case is a strictly federal one. Each state has their own laws governing what's going on that would need to be challenged and are based on the old Jacobson case. However, if the SCOTUS expresses hostility/skepticism to the reasoning of Jacobson--even though it's not really applicable in this OSHA case--that would be an invitation to challenge all mandates.
So, should the SCOTUS find against the federal government's use of OSHA as the administrative agency tool to inflict nonconsensual medical vaccinations upon workers for 'workplace safety,' how does SCOTUS get to a broader beat down of the administrative state using this case? There are other more deserving out of control agencies than OSHA that need to be hamstrung with the EPA, Dept of Energy, Education, and the IRS at the top of my list.
It depends on how they go about this case. Assuming they knock down the OSHA mandate, do they do it on a narrow basis--tailored to the specific facts of this case? That would probably be easy for them, because most people agree this is clear overreach by OSHA. However, would they use the case to lay out broad principles on the degree of deference to be given to administrative rules and regs? If they do, lots of rules would be challenged quickly and would be decided by lower courts. If they don't, it could be a long process waiting for the "right" case.
CTD, you wrote: "Very narrow rulings only invite more litigation. It's taking the easy way out."
But that, in a nutshell is CJ Roberts' judicial philosophy, which to this point, he has been able to enforce on the Court's decisions. The epitome of the easy way out.
- Only incremental changes;
- No sweeping decisions creating new law;
- Go along to get along;
- Keep those cocktail party invitations coming;
- Fend off court packing; and, perhaps most important to Roberts personally;
- Keep the flagrant illegality of his adoption of two Irish orphans through a South American country under the rug.
What I mean is this. My understanding of this case is that it's not so much about the rightness or wrongness of mandate requirements in themselves. The issue is whether OSHA (prodded by the regime) has overstepped it's authority as defined by statute. Thus, the SCOTUS could strike down the mandate as administrative overreach--beyond the scope of OSHA's statutory authority--without actually deciding on the mandate itself. Remember, the reason this "workaround" was adopted was because our federal system doesn't actually give the regime the authority to impose such mandates on the states. Again, that's why even Zhou admitted it's up to the states.
The "right" case might be an appeal from a state or local mandate in which the issue would very directly be something like due process under the 14th amendment--was the required injection an unconstitutional deprivation of liberty, for example? Something along those lines. Still, the SCOTUS could address the substance and give a clear idea of how they would treat appeals from the states that are based on due process under the 14th amendment.
That said, there is an opening for the SCOTUS to get into the substance of the mandate without transgressing 'judicial restraint'. There is a super strong argument that the mandate as proposed by OSHA oversteps workplace safety and gets into matters involving personal autonomy and healthcare choices. These are complex areas, but the experimental character of these injections does seem to invite court action. No court yet, that I'm aware of, has taken up that angle.