4 ms·
From the article: But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of wh
by WarOnPrivacy 5y ago
From the article: But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities.
What I do not see is where these specific responsibilities are laid out and clearly delegated to the states. Nor is it said why states are the preferred entity to determine and guide the response to a clear and present national threat.
.
For reference sake: Case law about states' rights to vaccinate the public:
In Jacobson v. Massachusetts (1905), the Supreme Court upheld a state’s mandatory compulsory smallpox vaccination law over the challenge of a pastor who alleged that it violated his religious liberty rights.
The U.S. Supreme Court, in an opinion by Justice John Marshall Harlan I, ruled that the state of Massachusetts acted constitutionally within its police powers to pass a law to protect the health and safety of the public.
https://mtsu.edu/first-amendment/article/1824/jacobson-v-massachusetts https://mtsu.edu/first-amendment/article/1824/jacobson-v-mas...
- josephcsible 5y ago> What I do not see is where these specific responsibilities are laid out and clearly delegated to the states. The Tenth Amendment makes it pretty clear that everything is that way by default.
- WarOnPrivacy 5y ago10A doesn't address health issues, nevertheless these specific responsibilities. What the 10A does is lay out the boundaries of state independence. What 10A does not do is nullify the Supremacy Clause; states can not overrule US Gov law. ref: https://www.findlaw.com/litigation/legal-system/the-supremacy-clause-and-the-doctrine-of-preemption.html https://www.findlaw.com/litigation/legal-system/the-supremac...
- peteradio 5y agoPass a law then.
- WarOnPrivacy 5y agoExecutive Orders are exercises of existing laws.
- rsj_hn 5y agoIf they are constitutional, yes.
- WarOnPrivacy 5y ago> If they are constitutional, yes. And the laws upon which EOs are based have to exist. Constitutionally dubious EOs (eg: EO12333) could be nullified by the SCotUS, if the political will exists to bring it before the court and if the court isn't overly deferential to those interests enhanced by the law.
- rsj_hn 5y ago> And the laws upon which EOs are based have to exist. Yes! They have to exist and also be constitutional themselves.
- WarOnPrivacy 5y agoIn this case the laws in play are Federal Property and Administrative Services Act, 40 U.S.C. 101 and section 301 of title 3, U.S.C.
- rsj_hn 5y agoI don't think that's the correct law -- Federal Property and Administrative Services Act, 40 U.S.C. 101 is about managing of Federal contractors and property. That is a separate vaccine mandate, which isn't really a mandate but a requirement that in order to contract with the federal government, you need to comply. The OSHA ruling under discussion (the one that was blocked) is for all employers with 100 or more employees.
- josephcsible 5y ago> 10A doesn't address health issues You're right. It doesn't address them in particular, so they get treated under it the same as everything else does.
- WarOnPrivacy 5y agoYour 10A argument seems to imply they are not specifically laid out anywhere. That seems likely - at least until the EO defined those those responsibilities and granted them to OSHA.
- josephcsible 5y agoAn executive order can't do that. The 10th Amendment says that only the Constitution itself can.
- WarOnPrivacy 5y agoAre you asserting that the 10A prevents OSHA from insuring that health safeguards are in place?
- josephcsible 5y agoYes. The right way to handle worker safety is the same way that we already handle electrical safety: each state independently chose to make the NEC the law.
- WarOnPrivacy 5y agoA decision that broadly strikes down OSHA's "reasonably necessary or appropriate" language would likely affect legal frameworks far beyond OSHA and cause many years of widespread chaos and uncertainty for businesses. This would seem to be why courts repeatedly show reluctance to do that.
- 5y ago
- rsj_hn 5y agoThe 10A says "for anything not mentioned previously in the constitution, it goes to the states". So when you say "I can't find where public health is mentioned in the constititution", well then there's your answer as to why it goes to the states. The issue for those wanting to make it federal is to try to explain that it's some manifestation of interstate commerce, roads, or the other powers explicitly given to the Federal government in the constitution. It's not the requirement of the states to show where the constitution gives them some power. It's only the job of the Federal government to find the text where they get some power. If they can find such a text, then yes, they get supremacy. But if there is no explicit text, it goes to the states.
- WarOnPrivacy 5y agoExecutive Orders are based on existing federal laws. Is your argument that federal laws are invalid if the language of that law doesn't exist in the Constitution?
- rsj_hn 5y agoThe Federal government can't just pass a law on anything it wants. The law has to be about some power explicitly granted to the Federal government in the constitution - an enumerated power. https://legaldictionary.net/enumerated-powers/ https://legaldictionary.net/enumerated-powers/ Otherwise the combination of being able to legislate in any area + supremacy clause means the states have no power that the federal government can't override. That's not federalism! Federalism means some powers can be centralized and others cannot, and it's the constitution that lists, or enumerates, the federal powers. For example, the Federal government can't pass a wealth tax or a property tax. It could only pass an income tax because of a constitutional amendment authorizing the taxing of incomes. Before that amendment, it could not even pass an income tax. States, however, can. That's why there is no federal property tax or asset tax but there are state versions of both! Now the name of the game is usually to try to link federal laws regarding regulation to the interstate commerce clause. But the courts don't have unlimited tolerance for that, and recently they've been pairing this tolerance back. In the past, for example, Federal gun control laws banning guns in schools were allowed because of tortured arguments that guns affect schools, and schools affect interstate commerce. I mean, real stretches were common like this. But those types of arguments don't fly anymore as the courts have regained a bit of sanity when it comes to federalism. Now when you stretch "public health" to include "mandatory vaccine", then you are really stretching interstate commerce quite a bit. This is going to raise constitutional questions as to whether you can force the entire population (as opposed to, say, airline pilots) to get a vaccine because of the interstate commerce clause. And if this is not an enumerated power, then it passes to the states and the EO is unconstitutional.
- peteradio 5y agoMakes sense to me, I don't want to be beholden to whatever experimentation California, New York, or Florida (as examples) chooses to impose on themselves.
- rsj_hn 5y ago> What I do not see is where these specific responsibilities are laid out and clearly delegated to the states Let me help you with this: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people https://constitutioncenter.org/interactive-constitution/full-text https://constitutioncenter.org/interactive-constitution/full...
- WarOnPrivacy 5y agoplease see this thread for that discussion: https://news.ycombinator.com/item?id=29150164#29150707 https://news.ycombinator.com/item?id=29150164#29150707