Emerging uses of “emergency”

Two of the Biden administration’s vaccine mandates came before the Supreme Court for oral argument yesterday, one arising under OSHA and the other arising under the auspices of HHS. I thought the first of these cases raised the question of administrative law regarding the lawful scope of agency authority in an unusually pure form. Listening to the oral argument in NFIB v. OSHA, however, I have been disabused of the notion.

Transcript of the oral argument is posted online here. C-SPAN has posted audio of the oral argument here with “points of interest” separately accessible on the right side of the page. I have posted the C-SPAN audio below.

The case is apparently a vehicle for low-definition yammering of the kind to which we have grown accustomed on cable news. Indeed, three of the justices appear to get their understanding of related facts from cable news. If there is a question of principle in the case, it has been lost somewhere in the allegedly thinning layer of ozone.

The OSHA Emergency Temporary Standard before the Court in the application for a stay may or may not win the Court’s approval, but I infer from the argument that OSHA exercises authority under a statute delegating congressional power in virtually unlimited form. Justice Sotomayor puts it this way (transcript at page 29): “Why isn’t the human being like a machine if it’s spewing a virus, blood-borne [sic] viruses?”

Justice Sotomayor isn’t completely worthless. She is good for comic relief as we slide down the slippery slope. Justice Sotomayor sagely observes, for example (transcript at pages 53-54): “[C]ounsel, those numbers show that Omicron is as deadly and causes as much serious disease in the unvaccinated as Delta did…. We have over 100,000 children, which we’ve never had before, in — in serious condition and many on ventilators.”

Often wrong, but never in doubt. If things don’t work out for her on the Court, a brilliant career beckons at MSNBC.

Justice Gorsuch circles around the major question (in layman’s language) by reference (transcript at pages 68-69) to the Court’s own “major question doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven’t heard a lot of discussion about that.”

Chief Justice Roberts circles around it this way (transcript at page 81): “It seems to me that the more and more mandates that pop up in different agencies, it’s fair — I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the — why doesn’t this be the primary responsibility of the states?” See also Justice Alito’s query at page 103 of the transcript and the ensuing discussion through page 111. Justice Kavanaugh’s formulates a similar query based on OSHA-related case law at transcript pages 123-124 et seq.

This is my low-definition take, but it comes from listening to the NFIB argument in its entirety. The government may well have the better of the argument as the issue comes before the Court. It is past time to return to the question of principle addressed by Professor Philip Hamburger in Is Administrative Law Unlawful? I summarized Hamburger’s argument in the NR review “A new old regime.” However the Court resolves this case, the problematic nature of the enterprise remains.

At page 134 of the transcript Justice Barrett asks: “So when does the emergency end?” The issue will return in forms increasingly oppressive to life and liberty now that the uses of “emergency” have become so obvious. To adapt Rahm Emanuel’s maxim, you never let a serious emergency go to waste.

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