9 ms·

10A doesn't address health issues, nevertheless these specific responsibilities. What the 10A does is lay out the boundaries of state independence. What 10A doe

10A 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 ago
Pass a law then.
- WarOnPrivacy 5y ago
  Executive Orders are exercises of existing laws.
  - rsj_hn 5y ago
    If 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 ago
        In 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 ago
        I 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.
        WarOnPrivacy 5y ago
        I haven't read the challenge but it seems reasonable that the EO is being challenged on laws other than the laws cited in the EO.
  - peteradio 5y ago
    Any precedent for an EO of this sort?
    - WarOnPrivacy 5y ago
      We're up to EO14050. If any previous EOs are similar, I'd imagine they'd have been cited by now.
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 ago
  Your 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 ago
    An executive order can't do that. The 10th Amendment says that only the Constitution itself can.
    - WarOnPrivacy 5y ago
      Are you asserting that the 10A prevents OSHA from insuring that health safeguards are in place?
      - josephcsible 5y ago
        Yes. 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 ago
        A 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 ago
The 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 ago
  Executive 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 ago
    The 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 ago

Pass a law then.

WarOnPrivacy 5y ago
Executive Orders are exercises of existing laws.
- rsj_hn 5y ago
  If 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 ago
        In 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 ago
        I 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.
        WarOnPrivacy 5y ago
        I haven't read the challenge but it seems reasonable that the EO is being challenged on laws other than the laws cited in the EO.
- peteradio 5y ago
  Any precedent for an EO of this sort?
  - WarOnPrivacy 5y ago
    We're up to EO14050. If any previous EOs are similar, I'd imagine they'd have been cited by now.

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 ago
Your 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 ago
  An executive order can't do that. The 10th Amendment says that only the Constitution itself can.
  - WarOnPrivacy 5y ago
    Are you asserting that the 10A prevents OSHA from insuring that health safeguards are in place?
    - josephcsible 5y ago
      Yes. 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 ago
        A 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 ago

The 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 ago
Executive 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 ago
  The 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.