The Capitol was breached again last Friday

This time, the Congress was assaulted by its neighbor, the Supreme Court

The mob that assaulted the Capitol last week wasn’t wearing camo and yelling “hang Mike Pence,” it was wearing the black robes of Supreme Court justices and crying out “take down the administrative state.”  The hearing at the court last Friday may end up having an even more profound effect on the Congress of the United States than the insurrection incited by Donald Trump, because what they were after was the constitutional authority of the Congress to make laws that apply equally to all 50 states.

The issue on the docket was the Biden administration’s vaccine mandates for companies with more than 100 employees and medical facilities which receive Medicare and Medicaid funds.  You would think that the court, which mandates vaccines, testing, and masks for anyone entering the Supreme Court building, would have been amenable to regulations issued by OSHA and the Department of Health and Human Services (which oversees Medicare and Medicaid) seeking to mitigate the deadly effects of the COVID pandemic.  After all, more than 830,000 Americans have been killed by the virus, with more than 2600 perishing on Friday, the day the Supreme Court heard the government’s case seeking to overturn a stay of the rule issued by the Fifth Circuit Court of Appeals in New Orleans.  The seven-day average of new cases is 718,000, with more than 900,000 Americans being diagnosed with the disease last Friday alone.

But noooooo.  “What a session it was,” wrote Slate’s excellent Supreme Court correspondent, Dahlia Lithwick. “The nihilism, hypocrisy, and armchair epidemiology on display at times bled into rank anti-vax-ism.”  She was referring in particular to Justice Samuel Alito, who went on at length about the “risks” of the vaccines against COVID.  He repeatedly stated that some people receiving the vaccines will endure “adverse consequences.”  When Solicitor General Elizabeth Prelogar pointed out that the FDA has found the vaccines safe and effective as compared to being unvaccinated “by orders of magnitude,” Alito exploded, apparently afraid that it would be reported that he was signing onto anti-vax lunacy.  “I’m not making that point. I’m not making that point. I’m not making that point. There is a risk,” Alito sputtered. 

“’I’m not making that point that I am making’” is the way cases are discussed now,” Lithwick observed dryly.  “Pick your own facts about the danger of COVID-19 and the efficacy of vaccines.”

But it wasn’t just anti-vax gibberish that polluted the rarified air of the Supreme Court last week.  It was the long-time arch-conservative dream of dismantling the so-called “administrative state” that really got the court’s six-justice right wing going.  The OSHA and HHS rules on vaccines were issued as regulations under the authority granted to both agencies by the Congress to oversee safety of working conditions in the case of OSHA, and the safety of health care professionals and patients alike under HHS.  When Congress writes laws intended to protect the public from say, predatory lenders or stock manipulators or deadly viruses, it doesn’t specify each and every scam that might be employed to fleece borrowers or investors or workers, or every disease coming down the pike. 

Congress leaves to the federal agencies the administration of laws and rules regarding the environment, production of energy, including nuclear energy, grazing on public lands, and yes, safety in the workplace from dangerous equipment, procedures, or diseases.  That’s why experts in the agencies apply the rules and lessons of science, evenhandedness and reason to the administration and enforcement of laws passed by Congress.  Executive departments like EPA and OSHA are charged with shielding workers at nuclear plants from radiation or equipping dangerous machines at workplaces with safety devices that will make them stop if something like a hand or arm gets caught in a conveyor belt, or disallowing the dumping of dangerous chemicals and industrial waste into public waters like streams, rivers, lakes and the ocean. 

The rules and regulations apply across the board to all businesses and all states because auto manufacturers, for example, have plants in states all over the country, and rivers and streams don’t respect state lines and local rules, they pass through multiple states and jurisdictions.  Viruses, too, don’t act differently in Iowa than they do in New Hampshire or Florida, so rules keeping people safe from the spread of disease in hospitals or workplaces must – or at least they should -- apply everywhere at once.

Not according to Chief Justice Roberts, however.  He suggested that vaccine and testing rules are the business not of the executive branch of the federal government where OSHA and HHS reside, but down in the states.  Mandating vaccinations or requiring testing or masks, Roberts said, is “the sort of thing that states will be responding to or should be or—and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone.”

There it is in a nutshell.  Roberts wants to return the control of stuff like pollution and workplace safety and even health mandates to the states and take it away from the big, nasty, federal government with all of its bothersome regulations and rules and such.  He’s not talking about states’ rights.  He’s talking about states’ obligations.  It should be up to the states individually to decide whether they want to require people to be vaccinated in order to work in nursing homes or hospitals according to Roberts.  I think you can look forward in June to a Supreme Court ruling on the Mississippi abortion case that will leave it to the states to make laws forbidding or allowing abortion as well.

This is what should be known as patchwork governing.  It would be like the Congress deciding that what the nation needs is an interstate highway system, but the Supreme Court says each state can determine what kind of highway to build within its borders.  Pennsylvania, for example, could have a four-lane interstate with restricted entry and exits, but when it reaches the border with West Virginia, it becomes a two-lane blacktop with stop signs and red lights every time there’s a crossroad.

The problem with states being given the sole authority to look after the health and welfare of their citizens is that some of them don’t do it.  Look at Florida and Texas and some of the other red states right now.  They have actually passed rules against vaccine and mask mandates in schools and businesses.  So if you’re running a chain of restaurants in Florida, say, and you want your employees to be vaccinated so they don’t run the risk of getting your customers sick – or getting sick from the customers – tough luck.  It’s every man and woman for him or herself in the red states, and if you don’t like it, you can move.

The Supreme Court seems bent on dismantling the kinds of rules and regulations that make the United States united against dangers like pollution, disease, faulty automobiles and airplanes, or scams intended to fleece investors or depositors out of their hard-earned money.  SEC?  Phooey!  Let’s have an unfettered marketplace!  FAA?  Screw that.  Let’s let the airlines decide when their aircraft need maintenance and safety inspections.  EPA?  Are you kidding?  Let’s allow the state of Tennessee to pollute the Tennessee River all it wants, and if that means PCB’s or any other dangerous chemical runs down into Alabama and ends up in the Gulf of Mexico, that’s just Alabama’s and the ocean’s grim fate.

Same thing with workplace safety.  If every state could make its own rules about what safety equipment to require in auto plants, for example, where do you think the auto manufacturers would build new plants?  In states that require a lot of expensive safety equipment, or states that allow you to run an assembly line on the cheap. 

What the Roberts court is determined to do is to allow the creation of a third world nation within the borders of the United States.  It won’t be a contiguous area like the Confederacy was intended to be in 1861.  It will be a patchwork country, with some states allowing vigilante enforcement of laws, like Texas does with its anti-abortion law, and other states restricting enforcement of laws to law enforcement agencies.  Some states will protect their citizens with health and safety rules.  In other states, if your kids come down with a disease like measles or chicken pox or COVID, it will be up to you whether you send them to school or not.  Predatory lenders are already permitted in some states.  When the Roberts court is through, predatory stockbrokers and ponzi-style schemes will be just fine too.  How about VA hospitals?  We’ll have good, clean, safe hospitals for veterans in some states, and dirty, unsafe VA hospitals in others, because heaven forbid we should allow some department of the “administrative state” to get in the way of the states that don’t want them meddling in their affairs.

Dark days are ahead for these United States, folks.  When this Supreme Court is finished, the states will be united in name only.