4 ms·

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

by 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.
  - WarOnPrivacy 5y ago
    > Now the name of the game is usually to try to link federal laws regarding regulation to the interstate commerce clause. Specifically it's permitting OSHA to insure workplace health measures. Is your argument that this is unconstitutional?
    - rsj_hn 5y ago
      I think some workplace health measures are constitutional and others aren't. Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not. Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety -- which is what OSHA is about (not "health", but safety, and primarily safety from occupational accidents). You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power and that it does not include anything forbidden to the federal government. The above is the test you always apply to any law, as well as any attempt to "stretch" an application of existing law to a completely new use case. Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states - the NIH issued guidelines but states were the ones who implemented stronger or weaker versions of these guidelines. This is why you have some states requiring masks, and others don't. Some states requiring vaccines and other's don't. So what we have here is a massive new Federalization done under the guise of OSHA, whereas the enabling OSHA legislation was not concerned with things like public health measures, but with workplace accidents.
      - WarOnPrivacy 5y ago
        > Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not. This seems reasonable. > Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety I agree it is an imperfect application and pushes past existing boundaries. > You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power If limited to the scope of this EO, this is hopefully part of what the courts are going to consider. > Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states. On the former, I agree on principle. On the latter I am disinclined to appreciate that arrangement while it is routine for state officials to exercise corruption and party favoritism - because it is typically left to harmful state officials to perform their own oversight.

by rsj_hn 5y ago

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.
- WarOnPrivacy 5y ago
  > Now the name of the game is usually to try to link federal laws regarding regulation to the interstate commerce clause. Specifically it's permitting OSHA to insure workplace health measures. Is your argument that this is unconstitutional?
  - rsj_hn 5y ago
    I think some workplace health measures are constitutional and others aren't. Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not. Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety -- which is what OSHA is about (not "health", but safety, and primarily safety from occupational accidents). You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power and that it does not include anything forbidden to the federal government. The above is the test you always apply to any law, as well as any attempt to "stretch" an application of existing law to a completely new use case. Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states - the NIH issued guidelines but states were the ones who implemented stronger or weaker versions of these guidelines. This is why you have some states requiring masks, and others don't. Some states requiring vaccines and other's don't. So what we have here is a massive new Federalization done under the guise of OSHA, whereas the enabling OSHA legislation was not concerned with things like public health measures, but with workplace accidents.
    - WarOnPrivacy 5y ago
      > Just the general category of workplace health measures is too broad and ill-defined to specify whether it is constitutional or not. This seems reasonable. > Particularly when you start stuffing things like vaccine mandates -- something unprecedented for OSHA -- into the bucket of workplace safety I agree it is an imperfect application and pushes past existing boundaries. > You would need to make a case that the measure ties reasonably to interstate commerce or some other enumerated power If limited to the scope of this EO, this is hopefully part of what the courts are going to consider. > Personally, I think trying to turn OSHA into a public health authority is a bit of a stretch, as historically this has been the job of states. On the former, I agree on principle. On the latter I am disinclined to appreciate that arrangement while it is routine for state officials to exercise corruption and party favoritism - because it is typically left to harmful state officials to perform their own oversight.