Benjamin Flowers is Ohio’s solicitor general, and he was supposed to be at the Supreme Court on Friday to ask the justices to nullify a Biden administration rule requiring most workers to either be vaccinated against Covid-19 or to be regularly tested for the disease.
But Flowers had to argue his case over the phone. The reason why? He himself has Covid, and therefore could not enter the justices’ workplace and risk endangering them and their staff.
It’s an elegant metaphor for the kind of see-no-evil approach to Covid-19 that Flowers, and several other lawyers arguing against policies from President Joe Biden’s administration, would impose on the nation. Flowers would have the justices block one of Biden’s most significant efforts to halt a potentially deadly disease that, as Justice Stephen Breyer noted multiple times during Friday’s arguments, is infecting about three-quarters of a million Americans every day this week.
And yet, if Friday’s argument in National Federation of Independent Business v. Department of Labor is any sign, there will almost certainly be at least five votes on the Supreme Court to block the workplace Covid rule, which applies to employers with 100 or more employees.
Meanwhile, in separate case Biden v. Missouri, the Court considered a rule requiring health providers that accept Medicare and Medicaid funds to be vaccinated. This oral argument was less of a bloodbath for the government, and it seems possible that this more limited rule for health providers will be upheld.
But the oral argument in the first case, NFIB, suggests that the Court’s 6-3 conservative majority is inclined to hand down a very broad decision — one that won’t simply hobble many of the Biden administration’s efforts to quell a pandemic that has killed nearly 830,000 Americans, but that could also fundamentally rework the balance of power between elected federal officials and an unelected judiciary.
Both the NFIB case and the Missouri case involve very broadly worded laws, enacted by Congress, which give federal agencies sweeping authority to protect the health and safety of workers or Medicare patients. But all six of the Court’s Republican appointees appeared uncomfortable with letting these agencies — and especially the federal Occupational Safety and Health Administration (OSHA) — fully exercise the power Congress has given them.
Multiple justices appeared eager to impose new restrictions on Congress’s ability to delegate authority to federal agencies. Indeed, the Court could easily give itself a sweeping new power to veto agency regulations that a majority of the justices disapprove of.
A majority of the Court, in other words, appeared much more bothered by the implications of letting the Biden administration fight the pandemic than they are bothered by the many deaths caused by the pandemic itself.
If the Court does wind up drastically shrinking the federal government’s authority, that won’t exactly be a surprise. The Court’s been signaling that it is eager to transfer power from federal agencies to the judiciary since shortly after then-President Donald Trump replaced the relatively moderate Justice Anthony Kennedy with hardline conservative Justice Brett Kavanaugh.
But, while the Court has foreshadowed the most likely result in the NFIB case for quite a while, that does not mean that a decision striking down OSHA’s vaccinate-or-test rule would be any less profound. NFIB is likely to be a turning point in the right-wing Roberts Court’s relationship with the elected branches — and it could permanently disable the federal government’s ability to address crises like the Covid-19 pandemic in the future.
Again, I've been warning about this for a while now. What the Roberts Court appears ready to do is to absolutely hamstring federal agencies and give nearly all of the regulatory and rule-making power to Congress, where Senate Republicans can simply block regulations from ever being made, and the rest can be delegated to the states.
Outside of State, Justice, and the Pentagon, the rest of the Executive branch is about to get torn to shreds, with entire agencies possibly rendered powerless. Mostly though, it's about making sure government can't work for the American people, and that the GOP's long-term authoritarianism is codified.
But Zandar, you say, if the GOP wants an authoritarian government, why cripple the executive? The answer, as I said, is the Senate. Democrats aren't going to get rid of the filibuster, and the Senate will always have at least 41 Republicans in any possible future scenario. A broad ruling that destroys regulatory authority in the executive means that the Senate can block any attempts to legislate that regulatory power, too.
As I've been saying, by July 4th, it's going to be painfully clear how bad things are going to be in the years ahead.