1/As @CarmelShachar and I feared/predicted in @TIME earlier this week (time.com/6138247/suprem…), the Supreme Court majority has sacrificed the public's health in the form of the OSHA test-or-vaccinate mandate on the pyre of the "major questions doctrine" supremecourt.gov/opinions/21pdf…
2/ While upholding CMS rule supremecourt.gov/opinions/21pdf…. 3 Justices would have gone further and found that had Congress w/clear statement authorized the OSHA rule, they suggest it would have violated the constitution. Clearly inviting cases to resuscitate the non-delegation doctrine.
3/ One my first read I was most struck by this passage towards the end of the joint Breyer-Kagan-Sotomayor dissent. The "When we are wise..." passage is one I suspect many will return to in years to come.
4/While certainly much less important than its effects on public health and administrative law I imagine the exchanges between the opinions on the "who decides" question will become an excellent teaching text.Rare to see a theme we teach in law school forefronted so directly! FIN

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