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Comment by sriram_malhar | Hacker News Reader

I really don't quite understand this fuss about the mandate.

Americans have tens of thousands of laws that are locally inconvenient but globally useful for public well being, such as stopping at red lights, not carrying guns on flights, or god forbid, breast-feeding one's kid (who has received a zillion other vaccines).All laws are one-size-fits-all mandates, so why the fuss about this one, other than the obvious political theater?

The petition claims that it is being treated as an "emergency" even after two years. But isn't it the case that it is because of the people like the petitioners that has led to vaccine misinformation and hesitancy, which has stretched the timeline?

I am less surprised about the petition than seeing this as the top voted post on HN.

View on HN

Judge lays out rationale very well. One of the main issues is whether a federal body like OSHA can mandate such a broad thing, and how that infringes on “state’s police power” which is a fundamental principle in the constitution limiting federal power into what is up to every state to legislate locally.

One cannot say “because COVID” and indefinitely suspend the constitution.

> I really don't quite understand this fuss about the mandate.

> Americans have tens of thousands of laws

OK, let me try to break this down to make the court ruling more understandable. The mandate is not a law. It's a regulation issued by OSHA, which is not a lawmaking body, but a regulatory body, charged with limiting workplace injury.

If it was a law, then you wouldn't have this ruling. Laws are passed by Congress.

In the U.S., regulations issued by various bureaucracies can't just be arbitrary. They have to be within the mandate of said bureaucracy, and they have to follow certain procedures. Otherwise they can be ruled as unconstitutional.

That is what the court ruled on. Not whether covid is important, or whether vaccines are good, or even whether vaccine mandates for covid are good. It ruled on whether OSHA is able to create a nationwide vaccine mandate using its ETS (emergency temporary standard) powers.

So the short summary of what "all the fuss" is about is whether this regulation was lawful.

Note that OSHA has a long history of abusing the ETS, and of the 10 times in its history that OSHA issued an ETS, it has been struck down or withdrawn prior to being struck down 9 times.

This is because the ETS powers are extraordinary and so are placed under very strict scrutiny by courts. Again, the courts are not ruling whether vaccine mandates are good, they are ruling whether the ETS power is being abused. This is why many (if not the vast majority) of legal experts have said that you can't use OSHA to make a nationwide vaccine mandate, and that this standard would inevitably be struck down.

This is a very similar situation to when the Biden administration tried to use the CDC emergency powers to freeze evictions. Again, the debate is not whether evictions are bad, or whether it was a good idea to freeze them, but whether the CDC emergency powers allowed freezing evictions. That, too, was struck down.

Hope that helps.

This is very well written out. Thank you.

It seems much of the conflicting arguments about this article are debating more about whether or not vaccine mandates are good/legal/constitutional, rather than seeing that this is a ruling against the method used to deploy the mandate (namely, using an OSHA ETS) and whether or not that is constitutional.

Correct. Court decisions are about the law, and here I blame the current administration for trying to take a shortcut and not doing either

1) legislation (which requires some horse trading -- you'll need to give the GOP something in return to peel off a few moderate votes in the Senate), or

2) work directly with the states to push them to roll out vaccine mandates, which again means that some states wont do it, but that's the way it is.

A combination of one of the above plus requiring vaccines for federal contractors -- which is like half the economy -- and you will get as much coverage or more as the current OSHA ruling which (strangely) affects only employers with 100 or more people. Thus it only covers 61% of workers, and workers are less than 50% of the population, so this OSHA mandate is only going to cover less than 30% of the population. That's a terrible way of doing public health.

FYI, that's another problem with this ETS. If it's such an emergency and it poses such a grave threat to worker safety, then why only apply it to firms with 100 or more workers? Why would workers in a firm with less than 100 employees be in less physical danger? And here's another problem -- they will need to claim this is a grave and immediate threat to workers -- something like daily exposure to a toxic waste dump or nuclear radiation (the bar is really high for ETS) but it's not -- 80% of the deaths are people over 65, so why do this in the name of protecting the health of workers? Of course you and I know the answer, we want the workers to get vaccinated to protect the elderly, so this is a public health measure where workers protect someone else, and doesn't fit well as a workplace safety measure. People can challenge this so many ways -- e.g. why not just require workers over the age of 50, etc? And it's going to be hard for OSHA to come back and say that workers under the age of 50 are in such grave and immediate danger. There are just so many things wrong with this approach, and so many ways to poke holes in it.

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