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Justice Sotomayor Claims Not to Understand the Distinction Between State and Federal Powers

Associate Justice Sonia Sotomayor poses during a group photo of the Justices at the Supreme Court in Washington, D.C., April 23, 2021. (Erin Schaff/Pool via Reuters)

Supreme Court Justice Sonia Sotomayor professed not to be able to understand the distinction between federal authority and state police powers during oral arguments in a consolidated case before the court on Friday morning.

The Occupational Safety and Health Administration’s (OSHA) rule states that employers of 100 or more workers must either require employees to be vaccinated, or force unvaccinated employees to submit to weekly testing and masking in the workplace. Both the National Federation of Independent Business and the state of Ohio are suing to end the OSHA vaccine or test mandate.

Critics, including the plaintiffs, submit that the rule represents federal and bureaucratic overreach. On Friday morning, Sotomayor expressed her dissatisfaction and puzzlement at that critique.

“I’m not sure I understand the distinction why the states would have the power [to institute a mandate such as  OSHA’s], but the federal government wouldn’t,” stated the associate justice.

When Ohio solicitor general Ben Flowers began to explain that the federal government lacks police powers, Sotomayor cut him off, exclaiming that that it has “power with respect to protecting the health and safety of workers. ”

“We have accept[ed] the constitutionality of OSHA,” continued Sotomayor, who eventually insisted that the federal government has “a police power to protect workers,” over Flowers’s objections.

Those objections are rooted in the Tenth Amendment, which states that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” In constitutional law, these are frequently referred to as “police powers,” and refer to efforts to regulate the health, safety, and morals of the populace.

Later in the oral arguments, Justice Clarence Thomas asked Flowers if he believed the state of Ohio could impose a mandate like OSHA’s in an effort to clarify the meaning and role of police powers.

Flowers answered in the affirmative, even going so far as to argue that Ohio could mandate vaccination for all of its residents.

Thomas finished the exchange by noting that “there seems to be a suggestion that this is all-or-nothing, that the other governmental bodies do not have police powers to regulate certain activities.”

Justice Neil Gorsuch later waded into the debate as well, asserting that “we have all kind of come to the point where we all agree that states have a wide police power under our constitutional system. Congress has to regulate consistent with the commerce clause,” before going on to note that Congress is required to legislate on major questions, rather than delegating that decision-making authority to federal agencies.

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