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The Rule of Law

The Rule of Law

Last updated on: November 15, 2021 at 2:43 pm by Gene Veith

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The Rule of Law 2021-11-15T14:43:42-05:00 Gene Veith

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President Biden’s vaccine mandate, requiring employers to terminate workers who refuse to get COVID shots or tests, was overturned by the U.S. Court of Appeals for the 5th Circuit in New Orleans, which previously put a temporary stop to the policy, but this time a three-judge panel made that stay permanent.

The Biden administration has avenues of appeal, but my interest here is in the reaction to the ruling and how it was covered by the media.

The story about the decision in the Washington Post by way of MSN dutifully reported the facts and the legal reasoning given by the court. From Eli Rosenberg and Ann Marimow, Federal appeals court halts Biden administration’s vaccine requirement, delivering policy a major blow:

Calling the requirement a “mandate,” the court said the rule, instituted through the Labor Department, “grossly exceeds OSHA’s statutory authority,” according to the opinion, written by Judge Kurt D. Engelhardt and joined by Judges Edith H. Jones and Stuart Kyle Duncan.

“Rather than a delicately handled scalpel, the Mandate is a one-size fits-all sledgehammer that makes hardly any attempt to account for differences in workplaces (and workers) that have more than a little bearing on workers’ varying degrees of susceptibility to the supposedly ‘grave danger’ the Mandate purports to address,” they wrote.

They said they believed that the ruling imposed a financial burden on businesses and potentially violated the commerce clause of the Constitution.

“The Mandate imposes a financial burden upon them by deputizing their participation in OSHA’s regulatory scheme, exposes them to severe financial risk if they refuse or fail to comply, and threatens to decimate their workforces (and business prospects) by forcing unwilling employees to take their shots, take their tests, or hit the road,” they wrote.

Then, instead of analyzing the ruling, the story says that the 5th Circuit is considered to be “one of the country’s most conservative appeals courts,” that one of the judges was appointed by Reagan and the other two by Trump, and that despite Biden’s mandate being “softer” than mandates from private companies because of the testing option, it has been receiving “blowback” from conservative groups.

The story then moves into an account about how surveys show that the public supports vaccine mandates, that public health experts say they are a “critical step” in getting COVID under control, and that mandates are proving to be effective in getting people vaccinated.

OK. But does the federal mandate “exceed OSHA’s statutory authority”? That is, does the Occupational Safety and Health Administration have the legal authority to exercise this level of control over private businesses? Does a government agency have the right to “deputize” employers against their will to enforce its policies? Should an unelected bureaucracy have the power to take away a worker’s job?

And does the mandate violate the commerce clause of the Constitution, which specifically tasks Congress–not the Executive Branch–with regulating commerce?

Are these important questions? Or should we assess legal rulings only according to political considerations (as in how “conservative” the judges are), pragmatic claims (but mandates work!), or whether or not they support our favored policies?

/div>
>We are seeing similar reactions to the trial of Kyle Rittenhouse, the teenager who killed two rioters who attacked him in the Kenosha, Wisconsin, riots. The presiding judge in his murder trial, Bruce Schroeder, has made some rulings in favor of the defense–such as chastising prosecutors for sneaking in inadmissible evidence and for trying to use Rittenhouse’s Constitutional right not to talk about the case as evidence against him. So Judge Schroeder is being labeled “right wing,” “racist,” a “Trumpist,” the “worst judge,” and someone trying for a “gig on FOX News.”

But actually, as Charles Cooke points out, Judge Schroeder is actually a liberal. He has long had the reputation of leaning over backwards to protect the rights of defendants. In fact, this is the kind of jurisprudence that Black Lives Matter protesters have called for.

Cooke cites a rather hilarious example of a politician who is demanding that Rittenhouse be sent to prison for life, but last year was demanding that prisons be abolished:

Two days ago, Hakeem Jeffries, a Democratic representative from New York, tweeted, “Lock up Kyle Rittenhouse and throw away the key.” Last year, he sang a different tune: “End. Mass. Incarceration. Defund The Prison Industrial Complex.” So which one is it? Are we ending “mass incarceration” and defunding the “prison industrial complex”? Or are we intervening mid-trial to recommend life sentence for suspects who are guaranteed the presumption of innocence by the very Constitution that Jeffries has sworn to uphold? Clearly, we can’t do both.

To be sure, this syndrome of supporting the law only when it gives you what you want is not confined to progressives, some of whom are calling for packing the Supreme Court with political allies to ensure that their side will win. Conservatives can do the same thing. Many conservatives are upset that the Supreme Court justices appointed by President Trump are not always ruling in favor of conservative causes. But judicial conservatism–as opposed to political conservatism–means adhering to the letter of the law, rather than, as they say, “legislating from the bench.” Usually, this will be in accord with conservative social policies, but not always.

At stake is the rule of law. Both dictatorships and democracies can result in tyranny, unless the government and its leaders are restrained by law. The nation will be at the whims and the mercy of whoever seizes power or is elected to it, unless the law is our ruler, making for an orderly society no matter who happens to be in charge at the time.

The American founders were committed to the rule of law, especially John Adams, to the point of defending in court the British soldiers who committed the Boston Massacre, despite his revolutionary sympathies.

To be sure, laws can be unjust. So the founders devised a mechanism for making them and changing them by means of an elected legislature. And their laws are themselves checked and balanced by the concept of a supreme law of the land–the Constitution–designed to protect citizens from despotism. And we have recourse to a higher law than that, the moral law according to which we can judge our rulers, our society, and ourselves.

The importance of the rule of law and its intellectual foundations are described well by the Bill of Rights Institute:

The Greek philosopher Aristotle wrote, “It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.” He explained that rule by absolute power is unnatural and harmful because those who hold such power are likely to abuse it by depriving others of their rights. “Passion influences those who are in power…Law is reason without desire.” This principle is known as the rule of law, and America’s Founders knew it was essential in a republic. John Adams, describing his objective in crafting the Massachusetts Constitution, phrased it this way: “to the end it may be a government of laws and not of men.”

The question for us today is whether we can retain the rule of law in a climate of desire without reason, the abuse of power to deprive others of their rights, and our impulse to place “the supreme power” in “particular persons” who think they are above the law.

Photo: Lady Justice by William Cho via Pixabay

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