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OSHA's Vaccine Mandate Illustrates the Perils of Reflexively Deferring to Government Experts

Added 01-19-22 12:21:02am EST - “When the Supreme Court blocked enforcement of the Biden administration's vaccinate-or-test rule for private employers last Thursday, the response from...” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “OSHA’s Vaccine Mandate Illustrates the Perils of Reflexively Deferring to Government Experts”. Below is an excerpt from the article.

When the Supreme Court blocked enforcement of the Biden administration's vaccinate-or-test rule for private employers last Thursday, the response from the three dissenters was familiar. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued that courts should not override the judgment of the government experts who know best how to deal with the COVID-19 pandemic.

The dissenters were right that the courts are not charged with formulating public health policies. But the courts are charged with deciding whether those policies are legal, and they forsake that responsibility when they reflexively defer to politicians and bureaucrats who claim an emergency justifies unprecedented restrictions on freedom.

In this case, the Occupational Safety and Health Administration (OSHA) issued an "emergency temporary standard" (ETS) demanding that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and submit to weekly virus testing. An ETS allows OSHA to avoid the notice, comment, and hearing requirements of the usual rule-making process, but only if the agency shows that its regulations are "necessary" to protect employees from a "grave danger" in the workplace.

"Courts have not been elected [and] have no epidemiological expertise," Kagan said during oral arguments on January 7. "Why in the world would courts decide this question?"

As Justice Neil Gorsuch noted then and in his concurring opinion last week, "this question" was "not how to respond to the pandemic, but who holds the power to do so." Two years into the pandemic, Congress has not addressed the issue of vaccine mandates, except for a December 8 Senate resolution aimed at overturning OSHA's edict.

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