The Supreme Court’s Covid Vaccine Test

Justice Antonin Scalia famously wrote that Congress doesn’t hide elephants in mouseholes. But that’s essentially what a Sixth Circuit Court of Appeals majority said Congress did late Friday when they lifted a stay on the Occupational Safety and Health Administration’s vaccinate mandate. The Fifth Circuit Court of Appeals last month stayed OSHA’s “emergency temporary standard” after finding the agency exceeded its legal authority by requiring that employees of private employers with 100 or more workers be vaccinated or tested weekly. The Biden Administration appealed to the Sixth Circuit, where numerous other lawsuits were consolidated.

This is an important moment for the Court. Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett have declined to enjoin New York’s and Maine’s healthcare-worker vaccine mandates that deny religious, but not medical, exemptions. Some Justices may want to defer to regulators on health and safety during the pandemic. But the separation of powers is crucial to safeguarding individual liberty. Justices now have two key tests on whether they will rein in the administrative state. They will have to decide if they take their major question and non-delegation doctrines seriously, or are they merely seminars at the Federalist Society?.. (Excerpts from the  Wall Street Journal)