In early 2022, the Supreme Court called a halt to the Biden Administration plan to have OSHA enforce a mandate that all private employers with more than 100 workers on their payroll have their employees vaccinated against Covid-19. In National Federal of Independent Business v. Department of Labor, Occupational Safety and Health Administration., the Court stated that “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power’…It is instead a significant encroachment into the lives—and health—of a vast number of employees. ‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance’ (citation omitted)…”
Now, at least one Justice of the Supreme Court, Neil Gorsuch, has found it necessary to remind us of the dangers of the government using their emergency powers to override our civil liberties. Ironically, many Republicans have fought hard to maintain the abuse addressed by Justice Gorsuch in Arizona v. Mayorkis.
Under 42 USC Sec. 265 (“Title 42”), the Surgeon General is “empowered by reason of the existence of any communicable disease in a foreign country (where) there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.” In October of 2020, the Director of the Center for Disease Control used this statute to prevent persons “traveling from Canada or Mexico (regardless of their country of origin) who would otherwise be introduced into…the United States” from entering our country “to continue to protect the public health from an increase in the serious danger of the introduction of Coronavirus Disease 2019 (COVID-19) into” the United States.
Though the Title 42 restrictions began under President Trump, “President Joe Biden initially kept Title 42 in place after he took office, then tried to end its use in 2022. Republicans sued, arguing the restrictions were necessary for border security. Courts had kept the rules in place. But the Biden administration announced in January (2023) that it was ending national COVID-19 emergencies.”
Arizona v. Mayorkis is one of several lawsuits brought in an effort to maintain in place Title 42’s prohibition of the entry of persons with Covid-19 into the United States, even after the pandemic was declared over. The DC Circuit Court of Appeals had ordered the dismissal of the case as moot, that is, there was no longer an issue that needed to be addressed by the courts. The Supreme Court agreed in a one sentence order.
Justice Gorsuch did not disagree with the decision of the lower court, nor did he disagree with the reasoning of those who sought to keep Title 42’s restrictions in place; “’Title 42 orders’…severely restricted immigration to this country for the ostensible purpose of preventing the spread of COVID–19…The States did not seriously dispute that the public-health justification for the orders had lapsed…But the States apparently calculated that even a short, court-ordered extension of those decrees was worth the fight. Worth it because, in their judgment, a new and different crisis had emerged at the border and the federal government had done too little to address it. Keeping the Title 42 orders in place even temporarily was better than the alternative.”
However, Justice Gorsuch took this opportunity to remind us of all we had lost since 2020 while living under one “emergency order” after another.
“Since March 2020,” Justice Gorsuch writes, “we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale. Governors and local leaders imposed lockdown orders forcing people to remain in their homes. They shuttered businesses and schools, public and private. They closed churches even as they allowed casinos and other favored businesses to carry on. They threatened violators not just with civil penalties but with criminal sanctions too. They surveilled church parking lots, recorded license plates, and issued notices warning that attendance at even outdoor services satisfying all state social-distancing and hygiene requirements could amount to criminal conduct.”
Justice Gorsuch continued; “Federal executive officials entered the act too. Not just with emergency immigration decrees. They deployed a public-health agency to regulate landlord-tenant relations nationwide. They used a workplace-safety agency to issue a vaccination mandate for most working Americans. They threatened to fire noncompliant employees, and warned that service members who refused to vaccinate might face dishonorable discharge and confinement. Along the way, it seems federal officials may have pressured social-media companies to suppress information about pandemic policies with which they disagreed.”
Justice Gorsuch then looked deep into the soul of the nation. ” Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat…We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms…the ancients warned that democracies can degenerate toward autocracy in the face of fear.”
Justice Gorsuch then addressed the heart of the problem – the overuse of emergency decrees. “(E)mergency decrees have a habit of long outliving the crises that generate them,” he wrote. “(S)ome federal emergency proclamations…remained in effect for years or decades after the emergency in question had passed…
“Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.”
Benjamin Franklin once famously said, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”
Let us remember these words as we contemplate our nation’s reaction to the pandemic of the early 2020s.
And as we contemplate this shameful episode, let us also remember the words of George Santayana; “Those who cannot remember the past are condemned to repeat it.”
Judge John Wilson (ret.) served on the bench in NYC.
Illustration: Pixabay