The Supreme Court and Congress Humiliate Themselves

The Supreme Court and Congress Humiliate Themselves By Clarice Feldman for American Thinker

Two important cases came before the Supreme Court this week and, in Congress, the Nancy Pelosi Reichstag Fire Revisited was being played out. In both cases, these bodies deserved our disrespect for their violation of established norms and display of ignorance.

The Supreme Court

Article III, Section II of the Constitution establishes the jurisdiction (legal ability to hear a case) of the Supreme Court. The Court has original jurisdiction (a case is tried before the Court) over certain cases, e.g., suits between two or more states and/or cases involving ambassadors and other public ministers. What this means in simple terms is that, with rare exceptions, when the court has original jurisdiction as detailed in Section II above, the court sits as an appellate court. That means that it is not a trier of fact. It must decide the legal issues based solely on the factual record. Anyone with even the most basic knowledge of civics knows this but, apparently, three justices do not and, in going beyond the scope of the trial court record, they not only exceed their constitutional role but showed why this limitation is important. They cited purported facts which are in substantial error in a forum where there is no opportunity to really contest them as would be the case in a trial court. The question in these two cases is whether the mandates were properly issued under the Administrative Procedure Act and in accord with the agencies’ congressionally delegated powers, not the individual justices’ views on the spread of COVID-19. It was hoped that these cases would rein in administrative agency overreaching and end a period of too lax judicial oversight of their activities.

Here’s the background. The Court heard two cases respecting COVID vaccine mandates on an emergency basis and, “in an unusual move, the justices opted to fast-track the cases for oral argument on the question whether the mandates can remain in place while challenges to their legality continue in the lower courts.”

The first case, National Federation of Independent Business (NFIB) v. Department of Labor challenges the Occupational Safety and Health Administration (OSHA) mandate requiring all employers of at least 100 persons to submit to vaccinations or regular testing. This mandate would apply to 84 million workers. Citing a retweet by White House Chief of Staff Ronald Klain referring to this mandate — which would cover most of the nation’s private workforce as “work around;” that is, a way to cover everyone in the absence of congressional legislation — Chief Justice Roberts indicated that he thought the government had overreached. He asserted that COVID mitigation policies were a matter better handled by the states and Congress.  Justice Neil Gorsuch seemingly endorsed this view. In the course of the discussion, Justice Stephen Breyer claimed there were “750 million new cases yesterday, or close to it, that is a lot.” (There are only 332.4 million Americans.) He also claimed that vaccines and masks would prevent 100 percent of the coronavirus infections.

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