"So when does the emergency end?" Justice Amy Coney Barrett asked Solicitor General Elizabeth Prelogar in the case of the National Federation of Independent Business v. Department of Labor on Friday.
This is the key question as we enter the third year of a pandemic that has seen the upending of our economy, our educational system, our public and personal lives. When does the emergency end?
Prelogar was arguing the case of vaccine mandates on behalf of the Biden administration, who has pushed through their mandates despite knowing that legal challenges would be coming, in a hope to force people into getting vaccinated simply by issuance of preliminary rule.
The emergency temporary standard claimed by Biden and OSHA was not enacted at the outset of the emergency, or even a year into that emergency, or even as soon as Biden stepped into the White House and began issuing executive orders overturning every Trump order he could think of. The emergency was claimed nine months after that, by which time the emergency wasn't the pandemic, but the refusal of many Americans to take the vaccine. Barrett took notice of this.
For Barrett, one of the key questions was not about the need to push through perhaps unjust laws due to the severity of the pandemic, but about the emergence of seemingly endless emergency powers that have been taken by federal, state, and local governments. Biden, in many cases, has legislated the pandemic through executive orders, some of which have come up before court.
And he's not the only one, in New York, ousted Governor Andrew Cuomo issued his directives from his pen alone, without consulting the people's duly elected representatives in the state Senate or the state Assembly. His counterpart in New York City, Mayor Bill de Blasio who just left office, did the same. City Council has not been consulted on de Blasio's vaccine mandates, which go far further than those the Biden administration is currently litigating before the nation's highest court. Even City Council members, speaking to The Post Millennial off the record, have no idea when these powers will come to an end, and they have no say in it.
Barrett asked Prelogar about "the status of this rule as an ETS," or an emergency temporary standard. She brought up the dissent of Chief Justice Jeffrey Sutton, who had heard the argument for the mandate in the 6th Circuit Court of Appeals. The 6th Circuit declined to hear the case brought by a slew of businesses and groups representing businesses, thereby upholding Biden's mandate.
Sutton dissented to the ruling to not hear the case. "When much is sought from a statute, much must be shown," Sutton wrote succinctly. "The Secretary of Labor asks a lot of the Occupational Safety and Health Act. He claims authority to issue an emergency rule, scheduled to go into effect on January 4, 2022, that will require roughly 80 million workers to become vaccinated or face a weekly self-financed testing requirement and a daily masking requirement. At the same time, he assumes authority to regulate an area—public health and safety— traditionally regulated by the States."
"If valid," Sutton continued, "the rule would nullify all contrary state and local regulations, as the power to regulate nationally is the power to preempt locally. Such broad assertions of administrative power demand unmistakable legislative support. The federal courts 'expect Congress to speak clearly when authorizing an agency to exercise powers of "vast economic and political significance"' and to use 'exceedingly clear language if it wishes to significantly alter the balance between federal and state power.'"
"Congress did not 'clearly' grant the Secretary of Labor authority to impose this vaccinate-or-test mandate," Sutton wrote.
Barrett referenced this dissent, saying that "OSHA did not adopt this rule in response to the emergency qua emergency because that had been ongoing since early 2020, but, instead, it responded to new facts on the ground which included the widespread availability of a vaccine, that maybe it was a surprise many people chose to forgo, and the emergence of the Delta variant."
"And Chief Judge Sutton," Barrett continued, "pointed out that in an extended pandemic, or I don't know if we've moved to an endemic, such as this one, facts will continually change. New variants will emerge. There might be new treatments, new vaccinations. We have boosters now, right? So now full vaccination might not just be the two jabs; it might include a booster as well."
"So when does the emergency end?" She asked
"I mean, a lot of this argument has been about Congress's failure to act," she went on, elaborating on that question. "Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging? And when must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way, which doesn't afford people the voice in the process that they are otherwise entitled to?"
Prelogar answered: "Congress defined when the emergency exists. It labeled this an Emergency Temporary Standard, but it's dictated by the statutory requirements. So there has to be a grave danger from a physically harmful agent or a new hazard, and the measures have to be necessary to protect against that danger. And we don't think that there is an additional free-floating requirement about emergency status that has to be taken into account."
"So it could be an emergency two more years from now?" Barrett asked.
"Well, I certainly take the point that the emergency can be of substantial duration. Of course, this is not a way to—to bypass notice and comment permanently. Congress further specified that the agency is expected to conduct a rulemaking process over six months, and that's why the agency estimated the lives saved, the hospitalizations prevented over the six-month life of the rule," Prelogar responded, essentially saying that the administration has to enact this emergency rule while Congress takes its time to decide if the rule should be enacted at all.
Barrett asked the key question, and it's one to which there has not been any kind of real answer. When does the pandemic end, when does it become endemic, such as other coronaviruses are? When do the emergency powers grabbed by executive office holders end? When do the people's representatives get their say back in how we are governed and over the laws that legislate our lives?
In early 2020, we began with uncertainty and fear, shutting down schools and public places, implementing so-called stay-at-home orders, and the phrase "two weeks to stop the spread" stretched into months. We watched as our leaders made exceptions to their rules for things like racial justice protests, which for some reason were not hemmed in by emergency restrictions enacted because of the medical emergency.
Now we are faced with a new emergency, but it is not the pandemic, but executive power. Staunch in their beliefs, sure of their righteousness, Biden and those who carry out his orders are willing to do whatever it takes to bend Americans not to the will of law, but to the will of their wishes.
The Supreme Court was right to hear the case, and they should rule against emergency powers enacted nearly three years into a pandemic, and nine months after the inauguration of the man who touts the emergency as the justification for his demands.
The emergency must end now; the people are due back their right to representation.