I’ve been writing about the awful consequences of the New Deal lately, particularly the widespread delegation of legislative power to the executive, something the Constitution clearly prohibits Congress from doing.Of course I’m talking about the various regulatory agencies created during the New Deal which can not only “write regulations” (i.e., “legislate”) and execute them, but in some cases even judge disputes in their own administrative courts.
We used to refer to an executive who made laws by decree and enforced them himself a “dictator,” but I guess the cigarette holder and the fake, Mid-Atlantic accent (which occurs naturally nowhere in the world) made it ok for FDR.OSHA wasn’t created until 1971, but it is built upon the same blueprint as the New Deal agencies. And it was OSHA that issued the regulation (passed a law Congress never voted on) requiring employers with 100 employees or more to require proof of Covid-19 vaccination or a negative test every week (the non-vaccinated would also have to wear facemasks indefinitely).
I had the good fortune to have Kevin Gutzman on Tom Mullen Talks Freedom’s very first episode to explain to us 1. How it came to be the executive branch acquired the legislative power and 2. How anything occurring at a single workplace could possibly be “interstate commerce.”
The federal government is only allowed to regulate interstate commerce, meaning commerce that crosses state lines.
If you haven’t heard this one yet, I encourage you to listen to it because the story is about to get even more interesting with what is going on in the courts.
Kevin referred to the constitutional prohibition on Congress delegating its legislative power to another branch “the nondelegation doctrine,” adding that it and the idea the federal government’s regulatory power should be limited to interstate commerce are both long dead and buried. And, of course, he’s right. Check out his Politically Incorrect Guide to the Constitution if you want to experience the long, painful death first hand.
Well, lawsuits were brought against President Biden’s tyrannical mandate arguing the very issues we discussed – nondelegation and the Commerce Clause – and the courts have issued a stay on enforcement of the mandate with language indicating they might just shoot this down. We don’t have a decision yet, but the stay order contains the following language:
“It was not—and likely could not be, under the Commerce Clause and nondelegation doctrine8—intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways.
“Well, whaddya know? The courts suddenly believe there is some limit to what the executive branch can do in terms of writing its own laws without Congress. But based on what? Why would OSHA writing a regulation requiring hard hats on construction sites not be legislating while requiring vaccines would be?
Why would the hard hat rule be interstate commerce but the vaccine rule not be?
Folks, if you’re looking for sound reasoning from the federal courts, I will again direct you to Kevin’s book. Don’t let the pomp and circumstance of the Supreme Court fool you – the black robed high priests often engage in reasoning that rivals this.
So, we may just have to take the W on this and move on. We’ll see.
Some good news that does make sense: If you haven’t already, you can download a free copy of my new e-book, An Anti-State Christmas, at antistatechristmas.com.
It’s also available in paperback here. It’ll cost you less than a fiver and makes a great stocking stuffer!
Like the music on Tom Mullen Talks Freedom? You can hear more at tommullensings.com!
Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.