The Supreme Court vs. Health and Safety

                                                     By David K. Shipler               

                When the Supreme Court blocked the Biden administration’s vaccine-or-test mandate for large employers, its three most conservative justices also issued a little-noticed concurring opinion with ominous implications. In it, they gave voice to an expansive interpretation of the “non-delegation doctrine,” which holds that Congress cannot delegate its legislative powers to the executive branch. When agencies issue broad regulations, the argument goes, they are effectively legislating, thereby violating the Constitution’s separation of powers.

                How far the Court will take this reasoning is an open question. But its most outspoken champion, Justice Neil Gorsuch, who wrote the concurring opinion, was joined by Justices Clarence Thomas and Samuel Alito in an alarming pronouncement: that even if the law allowed the Occupational Safety and Health Administration (OSHA), to issue the mandate—which existing law did not, the 6-3 majority ruled—such a statute should be overturned.

                “On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate,” Gorsuch, Thomas, and Alito declared. “On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

With two more votes on the Court, that position could hobble the federal government’s ability to apply health, safety, and environmental laws across the board. Indeed, a case involving the Environmental Protection Agency, to be argued next month, might provide an opportunity for a ruling of considerable scope.

January 6 and the Hypocrisy of "Democracy"

                                                         By David K. Shipler 

                 Communist East Germany officially entitled itself the German Democratic Republic. The dictatorship of North Vietnam was named the Democratic Republic of Vietnam. North Korea is the Democratic People’s Republic of Korea. And the Trump insurrectionists of January 6, 2021 executed their violence against Congress in the guise of protecting democracy.

                Democracy—that alluring concept, that aspiration, that illusion—is still a moral ideal, even among autocrats and would-be oppressors who wear it as an empty label. In the United States, moreover, the Constitution remains gospel, cited even by those who would shred its principles as fiercely as many religious zealots corrupt their holy texts.

                If the United States has a state religion, the late historian Robert Kelley used to say, it is constitutional democracy. That remains so. The very threats to constitutional democracy are being made in its name. The radical right mob that invaded the Capitol, seeking to keep Donald Trump in power, did not reject democracy; they fought for it, or so they believed, having accepted Trump’s lie that he had won the election. “Stop the Steal” became their mantra. They did not reject the Constitution; they claimed to defend it, even while attempting to sweep its provisions aside.

                The Republican Party, now a conduit for radical-right fantasies and dreams, pretends to bolster democracy while becoming the most formidable anti-democratic force in the United States. Instead of sobering the party, the January 6 assault emboldened Republican-controlled state legislatures to enact onerous restrictions on voting and—more menacing—disempower local officials who administer elections honestly. Election officials, facing death threats, leave their jobs, opening the field to the miscreants. “Election integrity,” the Republicans’ rationale, means the opposite. It sets the stage for elections that would be truly stolen.

                When words come to mean the opposite of themselves, when noble ideas are twisted into tools of their own demise, a society dives into a whirlpool. It is sucked down not just by legal mechanisms or institutional processes. Those are mere cover for the deeper currents of distrust and alienation, of humiliation and an angry sense of helplessness. Those, in turn, nourish a vulnerability to demagogues—not only Trump but Tucker Carlson, Sean Hannity, and other propagandists—and a susceptibility to outlandish tales of malevolent conspiracy. Even if Trump disappeared tomorrow, those currents would still course through much of America.