ArmoredRodent
Well-Known Member
Wow. I try to be respectful, but literally every sentence here is wrong. I'll try to give the benefit of the doubt here, but I apologize in advance if this seems disjointed; unavoidable since the sentences literally make no sense to someone who understands the system and proposal being "explained" here.
I have no idea what this first sentence is supposed to mean, but maybe it's talking about the new vaccination rules applying before you go to work for someone. I discussed in a post above how the rules will actually be developed. But this sentence doesn't describe how OSHA rules work anyway; they are rules on the workplace, and are likely to say something like "workers in XYZ-type workplaces must be vaccinated or otherwise meet the following exceptions." It may be that the effect of that kind of workplace rule is that the employer won't hire people who won't get vaccinated or otherwise protect themselves and other workers, but that would certainly be a "post employment" rule, if I'm understanding this sentence at all. In any event, OSHA rules have always said things like: "you must wear this harness when you work on a roof, or you can't work there." They are PREVENTATIVE, not remedial. So if the employer says: "you'll have to wear a harness on the roof or I can't hire you," that doesn't convert what you're calling a "post employment" workplace rule into a "pre-employment rule."
If the second sentence means most people are entitled to Due Process in most cases (that is, the federal and state governments are bound by the Fifth and Fourteenth Amendments' requirements for Due Process), then yes, if you VIOLATE a rule, you get Due Process before punishment. You can't just go around suing to block rules that don't affect you; courts will throw you out because the defendant and the beneficiaries of the rule are as entitled to Due Process as you would be. In technical terms, you would not have "standing" to get a ruling by a court. The constitutional and statutory checks-and-balances that apply to a government agency's rulemaking also provide for a different type of Due Process; to the extent that applies in the OSHA case, it would be in the development and enforcement of the rule, and applies to the regulatory system of the Executive Branch, not, in the first instance, to the Judicial Branch. Otherwise, I'm not sure what's being said here. It is not the purpose of the Judicial Branch (except in a few situations) to make law; it is to decide "what the law is." Marbury v. Madison, 1803.
The Judicial Branch can do far more than the three things you posit in the fractured third sentence here, and can only do the three things you say under certain specific limitations. For example, the recent Texas Abortion law decision by the Supreme Court, rejecting an application for an emergency injunction against the Texas law, can be boiled down to a simple, easy-to-understand rule: a court can only order relief against someone who has a chance to present a defense or case before the court, and a court literally has no power to order people who are not represented in court to do or not do something. That's what an "injunction" is: a court order to do or not do something. The problem with the Texas law is what's called "the fallacy of erasure," which is a fancy way of saying a court ruling that something is unconstitutional doesn't erase the unconstitutional law; it just can't be enforced. You can't enjoin a law; you can only enjoin those who would enforce the law not to do so. And a court can certainly act without a jury, especially in emergencies, and on constitutional matters. Suits against the federal government are usually decided without a jury trial. See, for example, 28 U.S.C. 2402; "Denial of jury trial in such circumstances does not contravene the Seventh Amendment. 'It hardly can be maintained that under the common law in 1791 jury trial was a matter of right for persons asserting claims against the sovereign.'" Galloway v. United States, 319 U.S. 372, 388 (1943).
But none of that applies to the OSHA rules at this point; the whole "pre-enforcement review" issue that derailed the Texas law literally doesn't exist before the proposed OSHA rule is at least drafted. In part, that's because courts can't issue "advisory opinions" talking about hypothetical situations. The Constitution forbids it. You have to have a concrete factual situation and specific injuries to have "standing" to even sue to block or affect a rule.
And you cannot lose your livelihood by an Executive Order, at least not any more. That happened to Americans of Japanese heritage during World War II, when President Franklin Roosevelt's order gave authority to the War Department, and many years later, this Nation apologized, paid money damages, and took steps to never do that again. That's not what's being talked about here; what's being discussed is a government agency using its congressionally-delegated authority to do something, hopefully in a constitutionally-appropriate manner. If it doesn't, there are available judicial remedies. For example, the recent Alabama Association of Realtors Supreme Court rejection of the moratorium on evictions was based on the CDC not having the authority to do that, even during the pandemic. "The District Court produced a comprehensive opinion concluding that the statute on which the CDC relies does not grant it the authority it claims." No. 21A23, Slip op. at 1 (per curiam).
Again, each of these sentences is wrong, and apparently based on an incomplete understanding of both the current proposals and the American system of government. I would strongly suggest that you refrain from making flat-out declarations of what the law is until you are sworn in as a federal judge and follow the rules to be sure you're talking about the right thing. I apologize if that sounds harsh, but it would save us both from some difficulties.
Well done
