A “Broad Animus” toward Government

Last week the Supreme Court ruled, along strictly ideological lines, that the federal government — acting through the Occupational Safety and Health Act (OSHA) — cannot impose Covid vaccine mandates upon large employers.  The Court was wrong.  Federal law explicitly gives OSHA the power to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards."  In its bizarre ruling, however, the six conservative justices reasoned that since workers could contract COVID outside of the workplace, OSHA did not have the authority to create a mandate.

If that reasoning doesn’t make much sense to you, you’re not alone.  The three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) seemed stunned by their colleagues’ logic, too.  They wrote: 

Contra the majority, [the law] is indifferent to whether a hazard in the workplace is also found elsewhere.  The statute generally charges OSHA with “assur[ing] so far as possible … safe and healthful working conditions.” … The statute does not require that employees are exposed to those dangers only while on the workplace clock.  And that should settle the matter.

But that didn't settle the matter, and the government is now constitutionally prohibited from mandating vaccinations for employees of large companies.

In what at first might have seemed more reassuring, two of the conservative justices, John Roberts and Brett Kavanaugh joined the three liberals in allowing the government to mandate that health care workers in hospitals and other facilities receiving Medicare money be vaccinated.

But that leaves four of the justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett) who would actually have forbidden health care facilities — overwhelmed by an infection that has killed over 850,000 Americans — from requiring vaccinations for their workers.

Paul Waldman writes:

The truth is that the conservatives on the court have a broad animus toward the government’s power to regulate at all, which is playing out in multiple cases.

Some observers have warned that we’re headed for a new Lochner era, referring to the period in the early 20th century when the court struck down laws concerning everything from child labor to minimum wages to monopolistic business practices, on the grounds that government had no right to interfere in the smooth operation of commerce and private contracts, even if it meant children toiling in dangerous factories.

In a little-noticed concurrence to the OSHA mandate decision, Gorsuch, Thomas and Alito made this broad animus explicit.  (The following argument gets a little hairy, so stick with me here.)

• In limiting the power Congress has to create government administrative agencies like OSHA, earlier Supreme Court decisions have insisted that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested,” adding that it must articulate an “intelligible principle” to limit the agency’s actions.
• Noah Feldman explains that:
  For more than three-quarters of a century, the justices have interpreted their own words generously, to maximize the powers that Congress is allowed to give to the agencies that regulate the air we breathe, the water we drink and the safety of our workplaces, among many other functions.  The court has treated almost any words used by Congress as satisfying the intelligible-principle requirement.  And the justices have allowed Congress to delegate enormous lawmaking powers without saying that the delegation counted as an impermissible transfer of essential legislative functions.
• The three radical right-wing justices, however, apparently want none of it and would severely limit the authority of Congress to delegate such power to administrative agencies.  In other words, they believe Congress has no right to allow OSHA to decide whether the Covid virus is a “physically harmful substance” or whether the vaccine mandate is “necessary.”  Rather, if the government wants to mandate masks for health workers, these justices contend, Congress itself would have to do the research, make the decisions, and write separate laws determining that COVID is physically harmful and that the mandate is necessary.  

If Gorsuch, Alito and Thomas had their way, myriad other agencies would be similarly hamstrung: 

• The Federal Drug Administration presumably would not be allowed to prohibit the sale of an unsafe drug without specific congressional findings and action. 
• The National Highway Traffic Safety Administration presumably could not regulate the design and safety of child restraints without specific congressional findings and action. 
• The Federal Aviation Administration presumably could not regulate the length of pilot shifts without specific congressional findings and action.

Americans depend upon the government to regulate public life in a broad variety of areas: public health, corporate behavior, transportation, employer/employee relationships, child protection and so on.  It’s disturbing enough that six members of the court won't allow the government to mandate masks for large employers; it's beyond disturbing that three members would not allow the government to mandate much of anything.

Turn Out the Vote

In the days following the January 6, 2021, insurrection, I felt some hope that the Republican Party would either self-correct or self-destruct.  

Republican House leader Kevin McCarthy repudiated the insurrection and blamed former President Trump for instigating it.  "The president bears responsibility for Wednesday’s attack on Congress by mob rioters.  He should have immediately denounced the mob when he saw what was unfolding.”  

Similarly, Senate Minority Leader Mitch McConnell was unequivocal:

Former President Trump's actions [preceding] the riot were a disgraceful – disgraceful – dereliction of duty. … The leader of the free world cannot spend weeks thundering that shadowy forces are stealing our country and then feign surprise when people believe him and do reckless things. …

There is no question that President Trump is practically and morally responsible for provoking the events of that day.

Even South Carolina's Lindsey Graham, Donald Trump's most loyal Senate supporter, denounced the attempt to overturn the November 2020 election, saying “he’d never been so humiliated and embarrassed for the country."  “Count me out.  Enough is enough.”

Within weeks, however, the flame of Republican sanity died.  McCarthy had visited Mar-a-Lago to re-ingratiate himself with Trump.  McConnell said he would “absolutely” support Donald Trump if he became the Republican standard-bearer in 2024.  And Lindsey Graham made clear that the Republican Party couldn't “move forward” without Trump at its head.

As Brian Klaas writes,

The conclusion is depressing, but we must face reality: The battle for the Republican Party is over.  The Trumpian authoritarians have won — and they’re not going to be defeated by pro-democracy Republicans anytime soon.

As I have written several times in the past year (for instance, here, here and here), the Republican Party is dominated by a cult in thrall to its populist demagogue, Donald Trump.  It is no longer a legitimate political party within a democracy.  While there are certainly politicians of stature — Liz Cheney comes to mind — the national party has committed itself to minority rule, restricting voting rights, establishing state mechanisms for overthrowing elections, and, most perniciously, subverting confidence in the American electoral system.  

While individual writers within the mainstream media have been increasingly willing to name the anti-democratic nature of the Republican Party, the overall attitude in the media and in the public at large still accords the party a legitimate place in our national politics.  Indeed, the party is favored to take over the House of Representatives and possibly the Senate this fall.

I was struck by the following Washington Post illustration accompanying an article regarding the battle between Democrats and Republicans:

 

The seemingly innocuous implication is that the two parties are legitimately arm-wrestling over issues within the democracy.  Wordlessly, the picture above normalizes autocracy.  But the national Republican Party is now an authoritarian sect, demanding allegiance to its demagogue for membership.  It has no place at the table of democracy.

We must recognize that the primary political issue today is no longer the pandemic, the economy, foreign policy, climate change, or even racism.  The primary political issue now is democracy.  Unless our failing democracy becomes our primary political concern, we will have lost our capacity to act as a country against the pandemic, the inequality of our economics, the foreign policy dangers abroad, the existential crisis of climate change or the scourge of racism.  

Democracy must now become the primary political issue of 2022.

So now what?

The extraordinary polarization of our electorate means that the results of the upcoming fall congressional elections — and the fate of the democracy — will not depend on converting Republican voters or even the 27% of independents who believe Trump won the 2020 election.  It will depend, rather, upon the massive turn-out of all Democrats and those many independents and not-usually-politically-involved who yet understand our current danger.  Many of us turned out in the 2018 congressional elections because the murder of George Floyd and the rise of Black Lives Matter made it unthinkable not to vote.  We turned out in 2020 because we recognized the existential threat of Donald Trump.  There is a danger, however, that we will see the coming congressional elections as less important; there's a danger we just won't show up.

In the aftermath of the First World War, WB Yeats wrote in "The Second Coming":

Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

We must not allow these times to drain us of conviction.

The implication for me is that I must become involved at the most basic level of our democracy, turning out the vote.  I must work with and support those very traditional organizations that are registering voters and preparing for voter drives in the fall.  Here are some that I will support:

• Vote Forward is a non-partisan organization that recruits members to write personalized letters (with paper, #10 envelopes, and USPS stamps) encouraging people to vote.  Its research indicates that it increases voting by 0.8%.  That seems minuscule, but the organization concentrates on close elections, where its 0.8% can mean tens of thousands of increased voters who can be the difference.
• Defend Democracy organizes person-to-person phone, Zoom, and text conversations to register Democrats and encourage voting.  There are regular opportunities to participate in whatever way feels genuine.
• The Union of Concerned Scientists will hold a voting rights training on January 18.

When I signed up to send hand-written letters to unregistered voters, Vote Forward  requested that offer a sample of what I will tell them about why I vote.  My elderly handwriting is slow and wobbly, but this is what I will write:

I vote because I believe that democracy, however beaten and battered, however imperfect and only-partially-just, is the only ultimately workable way for a country to move toward true justice for everyone.  In the end, I trust all of us to make the best decisions for all of us.  But it does take ALL of us.  My vote is my love for my neighbor and the world.

Now is a turning point in our democracy.  Our democracy depends upon me as an individual making my own tiny contribution.  Please join me.