Want to know why I call the five and maybe six (depending upon the day, Chief Justice Roberts) bomb throwers? First, read Mark Joseph Stern's summary of the two US Supreme Court opinions, one vitiating the Biden administration large business vaccine or weekly testing mandate, and one upholding the mandate for health care workers. Stern did the heavy lifting so I don't have to write too much.
After you read the decision, we should at least review the decision from Chief Justice John Marshall, in 1819, in McCulloch v. Maryland, where the US Supreme Court held the Constitution is a flexible document designed to meet contingencies we cannot imagine. The reason this is relevant is the Court majority voiding the mandate went beyond the plain language of the OSHA statute, which reasonably authorized the executive branch to enact the type of rule the Court threw out. As Stern says in his essay review of the decisions, the Court majority held the Constitution cannot be interpreted to allow for such a mandate without an express delegation of this precise type of situation. However, here is Marshall in McCulloch:
To have prescribed the means by which Government should, in all future time, execute its powers would have been to change entirely the character of the instrument and give it the properties of a legal code. It would have been an unwise attempt to provide by immutable rules for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances.
And here is Marshall again, in Gibbons v. Ogden (1824), where the US Supreme Court expressly rejected a strict construction of the Constitution:
This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar or which we have been able to discern that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a "strict construction?" If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded.
What do these decisions mean? The two decisions mean the US Constitution is a flexible document which may be broadly interpreted to meet exigencies which may arise. The right wing justices' conceit is they believe the US Constitution is far more limited and must be strictly construed. That is simply historically inaccurate.
In this context, now read what Justice Gorsuch, in his concurring opinion voiding the mandate, says about McCulloch v. Maryland:
I start with this Court’s precedents. There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the 'general power of governing,' including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. National Federation of Independent Business v. Sebelius, 567 U. S. 519, 536 (2012) (opinion of ROBERTS, C. J.); U. S. Const., Amdt. 10. And in fact, States have pursued a variety of measures in response to the current pandemic. E.g., Cal. Dept. of Public Health, All Facilities Let- ter 21–28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law Ann. § 2164 (West 2021).
The federal government’s powers, however, are not general but limited and divided. See McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers.
Catch that? McCulloch stands for limited and divided federal governmental power. Huh? Yet, that is the only mention any justice, including Gorsuch, made regarding McCulloch v. Maryland.
One may ask, is there a strategy this five to six justice majority is following in their voiding the Biden administration vaccine or weekly testing mandate for major corporations? Yes. The strategy is to continue to question the legitimacy of what Gorsuch and others call "the administrative state." They consider the administrative state, where Congress delegates powers to the executive branch to promulgate rules and enforce regulations based upon statutory authority, unconstitutional. As I said in a post from September 5, 2018:
(Political science professor) Kate Elizabeth Brown has written a very dense, but brilliant book which provides in detail the way in which Alexander Hamilton, while running the Treasury Department, formulated what became known as administrative law from the start of the U.S. government following the ratification of the U.S. Constitution. She also finds early Supreme Court and other lower court case law in the 1790s proving, as a practical matter, even the earliest Congressional legislation on excise taxes and other related economic legislation needed interpretation, and the creation of regulatory rules, in the administration of those earliest laws. What also came across to me was Hamilton's sense of posterity, in making sure not only his view but competing views, were aired before courts and the administrative tribunals in port-master contexts, and in navigating the concurrent and overlapping jurisdiction of federal and state authority, both judicially as well as in executive authority. I was deeply fascinated by the manner in which Hamilton, oblivious to modern proprieties and ethics, simply contacted judges to discuss potential matters that may come before the courts, set up test cases, and the like, but did so in a way that was transparent (most of the time) to all parties who had an interest in the dispute. It is extraordinary reading, if again very dense, due to the technical nature of the topic. But in the end, there is a powerful public policy lesson Professor Brown provides, which is to answer definitely and fully, the charge that the Administrative State only began because of those Commie New Dealers packing the Courts with Frankfurter and Jackson types who undermined the "real" Constitution.
The next big swing at the administrative state may be an environmental law case. See this New Yorker article about a major environmental case the Justices should have rejected as moot, but which the six person majority are excited to decide--and likely further limit Congress' delegation authority to the Environmental Protection Agency (EPA).
As I sit here this morning, I believe we should add the current Supreme Court justice majority to the list of existential crises facing the United States of America. The bomb throwing justices aim to undermine the ability of the federal government to do well by its citizens, and to reject any expertise from the federal government agencies in matters of health, safety, the environment, and workplace regulation.
And if anyone believes the Constitution does not grant Congress the power to economically regulate in these areas, here is James Madison, in Federalist Paper no. 10:
So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government. (Emphasis added)
Oh well. It was a decent Republic while we had it, with apologies to Native Americans and African-Americans for starters.
