Balancing the Equities in the Vaccine Mandate Case
I don’t have much to say about the merits of the challenge to the OSHA vaccine regulations, except that I prefer my statutory interpretation to be more textualist and my constitutional principles to be more forthrightly asserted. But like Richard Re, I was struck by the scant, and self-denying, reasoning when the Supreme Court got to the equitable considerations in whether to grant or deny a stay.
In the past the Court has said that when considering a request for a stay, after considering the likelihood of success on the merits: “A stay is not a matter of right,” but “is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case.” Also: “the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest.” (The quotes are all from Chief Justice Roberts’s opinion for the Court in Nken v. Holder (2009).)
And yet here is how the Court addressed this inquiry in NFIB v. Biden:
The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32–33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408.
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.
On its face, this is a very strange claim, as Richard notes. It is true that when considering the mer
Article from Reason.com