From the article: But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities.
What I do not see is where these specific responsibilities are laid out and clearly delegated to the states. Nor is it said why states are the preferred entity to determine and guide the response to a clear and present national threat.
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For reference sake: Case law about states' rights to vaccinate the public:
In Jacobson v. Massachusetts (1905), the Supreme Court upheld a state’s mandatory compulsory smallpox vaccination law over the challenge of a pastor who alleged that it violated his religious liberty rights.
The U.S. Supreme Court, in an opinion by Justice John Marshall Harlan I, ruled that the state of Massachusetts acted constitutionally within its police powers to pass a law to protect the health and safety of the public.
> What I do not see is where these specific responsibilities are laid out and clearly delegated to the states
Let me help you with this:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
10A doesn't address health issues, nevertheless these specific responsibilities. What the 10A does is lay out the boundaries of state independence. What 10A does not do is nullify the Supremacy Clause; states can not overrule US Gov law.
The 10A says "for anything not mentioned previously in the constitution, it goes to the states". So when you say "I can't find where public health is mentioned in the constititution", well then there's your answer as to why it goes to the states.
The issue for those wanting to make it federal is to try to explain that it's some manifestation of interstate commerce, roads, or the other powers explicitly given to the Federal government in the constitution. It's not the requirement of the states to show where the constitution gives them some power. It's only the job of the Federal government to find the text where they get some power. If they can find such a text, then yes, they get supremacy. But if there is no explicit text, it goes to the states.
Executive Orders are based on existing federal laws. Is your argument that federal laws are invalid if the language of that law doesn't exist in the Constitution?
The Federal government can't just pass a law on anything it wants. The law has to be about some power explicitly granted to the Federal government in the constitution - an enumerated power.
Otherwise the combination of being able to legislate in any area + supremacy clause means the states have no power that the federal government can't override. That's not federalism! Federalism means some powers can be centralized and others cannot, and it's the constitution that lists, or enumerates, the federal powers.
For example, the Federal government can't pass a wealth tax or a property tax. It could only pass an income tax because of a constitutional amendment authorizing the taxing of incomes. Before that amendment, it could not even pass an income tax. States, however, can. That's why there is no federal property tax or asset tax but there are state versions of both!
Now the name of the game is usually to try to link federal laws regarding regulation to the interstate commerce clause.
But the courts don't have unlimited tolerance for that, and recently they've been pairing this tolerance back. In the past, for example, Federal gun control laws banning guns in schools were allowed because of tortured arguments that guns affect schools, and schools affect interstate commerce. I mean, real stretches were common like this. But those types of arguments don't fly anymore as the courts have regained a bit of sanity when it comes to federalism.
Now when you stretch "public health" to include "mandatory vaccine", then you are really stretching interstate commerce quite a bit. This is going to raise constitutional questions as to whether you can force the entire population (as opposed to, say, airline pilots) to get a vaccine because of the interstate commerce clause. And if this is not an enumerated power, then it passes to the states and the EO is unconstitutional.
I think some workplace health measures are constitutional and others aren't.
Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not. Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety -- which is what OSHA is about (not "health", but safety, and primarily safety from occupational accidents).
You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power and that it does not include anything forbidden to the federal government. The above is the test you always apply to any law, as well as any attempt to "stretch" an application of existing law to a completely new use case.
Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states - the NIH issued guidelines but states were the ones who implemented stronger or weaker versions of these guidelines. This is why you have some states requiring masks, and others don't. Some states requiring vaccines and other's don't. So what we have here is a massive new Federalization done under the guise of OSHA, whereas the enabling OSHA legislation was not concerned with things like public health measures, but with workplace accidents.
> Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not.
This seems reasonable.
> Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety
I agree it is an imperfect application and pushes past existing boundaries.
> You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power
If limited to the scope of this EO, this is hopefully part of what the courts are going to consider.
> Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states.
On the former, I agree on principle. On the latter I am disinclined to appreciate that arrangement while it is routine for state officials to exercise corruption and party favoritism - because it is typically left to harmful state officials to perform their own oversight.
> it is routine for state officials to exercise corruption and party favoritism - because it is typically left to harmful state officials to perform their own oversight.
Are you saying you don't believe that to be the case for federal officials?
I absolutely believe nearly all of Congress is profoundly corrupt.
However the closer the gov, the more it directly it impacts me. My county is generally square with us and I've been happy with them. Conversely, my state leadership choices have resulted in years of real-life grief for us.
FWIW, county and state are dominated by the same party. My county mostly serves us while the state serves party+donors and that's about it.
Yes but it's easier for you to have an impact and escape or migrate away from corrupt state power vs federal power. Kind of proving the liberty argument here, your just not happy with it with this cause because you don't agree.
Why do you think corruption is a domain found in lower administrative institutions? Modern states have the opposite problem because just as companies prefer a lower number of suppliers, they also prefer having to influence fewer officials. Corporate influence on subsidiary institutions isn't feasible. Happens too, but the damage is restricted.
In the EU this is a massive problem. For some countries the situation is better, but you provide a far larger attack surface for special interest with huge capital.
Your 10A argument seems to imply they are not specifically laid out anywhere. That seems likely - at least until the EO defined those those responsibilities and granted them to OSHA.
Yes. The right way to handle worker safety is the same way that we already handle electrical safety: each state independently chose to make the NEC the law.
A decision that broadly strikes down OSHA's "reasonably necessary or appropriate" language would likely affect legal frameworks far beyond OSHA and cause many years of widespread chaos and uncertainty for businesses. This would seem to be why courts repeatedly show reluctance to do that.
Are you saying that is a violation of the Constitution, but that we should just let it slide forever instead of ever enforcing it since violations of the Constitution are really common today?
And the laws upon which EOs are based have to exist.
Constitutionally dubious EOs (eg: EO12333) could be nullified by the SCotUS, if the political will exists to bring it before the court and if the court isn't overly deferential to those interests enhanced by the law.
I don't think that's the correct law -- Federal Property and Administrative Services Act, 40 U.S.C. 101 is about managing of Federal contractors and property. That is a separate vaccine mandate, which isn't really a mandate but a requirement that in order to contract with the federal government, you need to comply.
The OSHA ruling under discussion (the one that was blocked) is for all employers with 100 or more employees.
Makes sense to me, I don't want to be beholden to whatever experimentation California, New York, or Florida (as examples) chooses to impose on themselves.
What I do not see is where these specific responsibilities are laid out and clearly delegated to the states. Nor is it said why states are the preferred entity to determine and guide the response to a clear and present national threat.
.
For reference sake: Case law about states' rights to vaccinate the public:
In Jacobson v. Massachusetts (1905), the Supreme Court upheld a state’s mandatory compulsory smallpox vaccination law over the challenge of a pastor who alleged that it violated his religious liberty rights.
The U.S. Supreme Court, in an opinion by Justice John Marshall Harlan I, ruled that the state of Massachusetts acted constitutionally within its police powers to pass a law to protect the health and safety of the public.
https://mtsu.edu/first-amendment/article/1824/jacobson-v-mas...