Question of the day: In the United States, may government do (a) only what the law permits or (b) everything except what the law forbids?

The answer is (a). Government has only those powers that “We the People” have given to it.

Addressing constitutional law in A.L.A. Schechter Poultry Corp. v. United States in 1935, the U.S. Supreme Court held: “Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action (that) lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power. … Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary.”

Those who want government to have more power than it does, and perhaps also want the answer to be (b), often make assertions under (a) while stretching – beyond the breaking point – law that empowers government.

However, government must follow the law.

Which brings us to the high court’s Jan. 13 holding that a vaccine mandate violates the law.

This is a joint decision in two actions brought against the Department of Labor, Occupational Safety and Health Administration, or OSHA. One action was brought by the National Federation of Independent Business. The other was brought by Ohio and other states.

The decision is “per curiam,” meaning it’s not signed by any justice. The decision, however, has the backing of Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Justices Stephen Breyer, Sonya Sotomayor, and Elena Kagan dissented.

Much of the decision appears to be written in Roberts’s distinctive style, which here is so refreshingly clear that it largely needs quoting, not summarizing.

As the court explained, OSHA “enacted a vaccine mandate for much of the (n)ation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID-19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact to any measure similar to what OSHA has promulgated here.”

One problem with the mandate, the court held, is that the law doesn’t permit OSHA to promulgate it: “As its name suggests, OSHA is tasked with ensuring occupational safety – that is, ‘safe and healthful working conditions.’ … Such standards must be ‘reasonably necessary or appropriate to provide safe or healthful employment.'”

In short, the law authorizes “workplace safety standards, not broad public health measures.”

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.

“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind – addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the (s)ecretary (of labor) now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.

“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.”

John Roberts isn’t the only court member who impresses Randy Elf as writing with such refreshing clarity.

COPYRIGHT ç 2022 BY RANDY ELF