In February 2022, the Ezra Klein podcast (via NYT) had a great interview with Columbia Law professor Jamal Greene. Overview here. Transcript here.
Greene feels the SCOTUS focuses on obscure concepts, nit-picks originalism, and overestimates the meaning of "rights" in ways that are avoided by high courts in comparable nations. He and Klein are (I think) quickly dismissive of the SCOTUS decision halting OSHA's implementation of mandatory workplace vaccinations [or self-paid masking and testing]. They think this pivoted on cryptic "major questions doctrine" rather than a full balancing of the factual and contextual pro's and con's.
I enjoyed the podcast a lot, and on this point, I think they misread the SCOTUS decision. I submitted the comment email below. The conservative justices were in fact weighing the fact that federal authorities are those not delegated upward in the 1780s by states, notably "making treaties" or "adjudicating border disputes among the states." They note well over 100 years of history that leave the issue of mandatory vaccinations at the state, not federal level, which is considering context and social facts. And like it or not (I don't like it) there are way over 100 years of history of a proportion of the population not liking vaccination at all, which is a social context and fact. In short, I see a range of ways that the OSHA SCOTUS decision actually fits many of the concepts that Greene is talking about. _____
[February 6 by email]
I enjoyed the current podcast with Jamal Greene.
Though a liberal, I think the SCOTUS OSHA Vaccination case can be dismissed too quickly as "bad court."
Although one can surely disagree, I think one key point was, by analogy, you can't call an elephant a house pet, to fit into city rules for house pets. We may find it hard to define house pet (see a law about "cats, dogs, and similar house pets") but it's not an elephant. This drawing of lines happens all the time. We have a right to get a passport. It's judged fair for this to cost $100 and require 8 weeks. It wouldn't be fair to cost $1 million and require 100 years. But we don't have constitutional point for the maximum dollar of reasonable cost, or a day that triggers an illegitimately-long delay for a passport.
I think SCOTUS was saying, this mostly looks like a 100M or 150M person public health vaccination program - that's the government's intent (to use language from Greene). You can't suddenly stuff that government plan into what COULD be (as an OHSA regulation published one morning in the Federal Register) merely any mid-level policymaker's decision, inside an agency designed for hard hats and putting guards on electric saws. They'd say, and did, they're not sure where to draw the line for OSHA, but it's not that sudden and far.
Conservatives noted also, setting a sociopolitical context, that mandatory vaccination has been a state's issue since 1904, and this isn't the way to make it a federal issue (instead do that by law). And here in the US, as in Europe, and other continents, mandatory vaccination is a hot issue for generations. (OK, I also know it wasn't purely a mandatory vax law). So, surprisingly, SCOTUS seemed to be using a few of the Jamal Greene, or the German, principles in their own verbalization in the OSHA case.
Again, I'm just saying the "other side" here in OSHA weren't complete idiots or hacks but had a several-theme framework that made sense to them and I can kind of see the shape of what they were thinking.
Bruce Quinn MD PhD
Los Angeles