Justice Elena Kagan said federal agencies have expertise in disease management and suggested OSHA has the authority to make the mandate because “this is a pandemic in which nearly a million people have died.”The government has a power the Constitution doesn't grant because a lot of people have died? It's a style of thinking called "A policy I favor" because "facts on the ground I hate." That's not even a good explanation for why she likes the policy, let alone a stab at an explanation for why the federal executive branch has the power to implement the policy. Was it an illusion that our society ever possessed the ability to consider two critical questions--(1) whether the policy will actually have the desired effect and (2) whether the proposed agent has the legal authority to implement the policy, even assuming it would have the desired effect?
I'm really losing patience with the argument that I have to agree to some policy of uncertain cost and benefit because otherwise I must not care about the bad things that are happening. Yes, it's a bad disease. Yes, I bitterly regret that it's hurting and even killing people. No, it doesn't follow that every harebrained scheme will make things better. Nor does it follow that everyone who objects to a harebrained scheme either denies that it's a bad disease or doesn't care about sick people. It's because it's a serious problem that's actually hurting and killing people that I insist that we find things to do about it, if we can, that don't make things worse. As in the case of global hot/cold/wet/dry mania, I advocate sticking to policies that are neither pointless, more harmful than beneficial, nor an illegal use of state power that will come back to bite us later--very possibly without even having helped in the crisis we argued was great enough to justify jettisoning both the Constitution and considerable material prosperity.
No, they didn't drop sharply - just certain IQ's became glaringly apparent for the first time, and it's a shock to the system.
ReplyDeleteI call the same phenomenon, "The government exists to do good, and therefore it must have whatever powers it needs to do good as I understand good."
ReplyDeleteNo one on that court should ever be caught saying something like this:
ReplyDeleteJustice Elena Kagan said federal agencies have expertise in disease management and suggested OSHA has the authority to make the mandate because “this is a pandemic in which nearly a million people have died.”
That's not entirely on Kagan. She's simply following Supreme Court precedent in the Court's Chevron and Skidmore deferences. It's been long clear that such deference needs to be rescinded--it's inexcusable that a coequal branch of government subordinates itself to another branch, much less to a subordinate bureaucracy of another branch--but until it is, there it is.
Kagan did go badly wrong elsewhere, when she said There’s nothing else [referring to the OSHA mandate] that will perform that function better than incentivizing people strongly to vaccinate themselves. Even stipulating that to be accurate (and it isn't), that's a policy decision that only the political branches of government can make and the political actors at large--us voters--who hire those politicians can make. It's far outside the scope of what the Judiciary is allowed to do, as Art I, Sect 1 makes clear. But this is a liberal judge, who thinks it's entirely appropriate to rule on her personal view of societal need, rather than on what the law says--which is what society, us voters, define for ourselves, thank you very much, as our need by who we hire to make policy decisions and who we rehire or fire after those decisions have been enacted.
The really dangerous one on the Court, though, is the wise Latina Sotomayor, who spouted two outright lies during her time in the sun, by remote control. Her first lie was her bald statement that OSHA's mandate isn't a mandate because a) it's a rule, and b) anyway, there's the option of testing. Well, no, a rule is a mandate in regulatory (or whatever the term is--administrative?) law, and with the choice not being between vaccination or testing, but between vaccination or testing on the one hand, and the employer being ruinously fined or the employee ruinously fired on the other hand, the rule is plainly a mandate.
Sotomayor's other lie was the 100,000 children in hospitals as her justification for upholding the government's action, whatever she wants to term it. It's impossible to believe that she's really that misinformed.
Kagan can be taken as fundamentally honest, but no longer Sotomayor. With such openly dishonest Justices as she, demanding to rule on her feelz and her open lies rather than what the Constitution or a law actually says, the Court's reliability is an open question.
Eric Hines
Well, if she FEELZ that 100K children are hospitalized, many on ventilators, isn't that what's important? You'll just make her feel unsafe if you contradict her, you unwise non-Latinx denier.
ReplyDeleteKagan is indeed a fool, and always has been, as Aggie notes. Crises reveal stupidity.
ReplyDeleteI have railed against many arguments against mandates, but that doesn't make the arguments for them automatically good. In particular, even if people think agencies should have certain powers doesn't mean they actually do.
Sorry, I meant Sotomayor. I suppose I shouldn't be so quick to criticise off the top of my head. OTOH, I tended to do better at things that were my actual job.
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