Posted on February 17, 2022 by Ridge Hall
On January 13, 2022, the Supreme Court stayed OSHA’s emergency temporary Covid protection standard for employers of at least 100 people. The standard required that all employees be vaccinated or undergo weekly testing and wear masks. Nat’l Fed’n of Indep. Bus. v. OSHA, 595 U.S. ___ (2022). The statute under which OSHA acted, 29 U.S.C. 665(c)(1), authorizes such standards to protect employees from “grave danger” from exposure to “substances or agents determined to be…physically harmful or from new hazards.” OSHA’s determination is “conclusive if supported by substantial evidence.” Citing the serious harm which Covid was causing to workers, OSHA estimated that its standard would apply to 84 million employees and save approximately 6500 lives during its 6 month duration.
In a cavalier per curiam decision, the Court issued a stay, finding it likely that the petitioners challenging the standard would succeed on the merits because Congress had not clearly authorized a standard of such breadth. The Court said OSHA had never before issued a standard covering so many employees. This would be a “significant encroachment on the lives and health of vast numbers of employees.” Furthermore, it said OSHA’s mission is to reduce workplace hazards, but since Covid is a hazard everywhere, setting a workplace standard for it was beyond OSHA’s authority. The Court ignored OSHA’s voluminous record and expertise with workplace protection.
Justice Gorsuch, in a concurring opinion joined by Thomas and Alito, opened his analysis by asserting: “The central question we face today is: who decides?” A federal agency, Congress or the states? That, of course, was not the question before the Court. The question there was simply whether the statute authorized OSHA’s action. Gorsuch said that the answer was provided by application of “the major questions doctrine”, citing one of his own dissents in another case. That doctrine says that where the regulatory action in question poses a “major question”, it will be set aside unless Congress has very clearly authorized it. He said the per curiam decision used the same analysis, which it appears to have done without using those words. Like the majority, Gorsuch said that since Covid was not uniquely a workplace hazard, OSHA had no authority to issue a standard to protect workers against it. To convince us that Congress did not clearly authorize it, he pointed out that “Section 665(c)(1) was not passed in response to the pandemic.” Oh, really?
In a powerful dissent, Justices Breyer, Sotomayor and Kagan agreed with OSHA that Covid posed a serious hazard in the workplace and worker protection was warranted. They cited numerous instances where OSHA had issued standards covering many millions of employees, and for hazards that exist in the workplace that also exist outside it. They had no trouble finding OSHA’s actions clearly authorized – indeed required – by the statute. As to the majority’s decision they wrote: “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.” The majority, they continued, perverted the purpose of the statute by holding that because the protections the agency sought to provide were far-reaching, Congress could not have authorized them.
The significance of this case lies in its use of the shadowy “major questions doctrine” to strike down a rule which has broad application just because the statute, which itself speaks broadly, did not expressly identify precisely the harm that the agency sought to reduce. There was no deference whatsoever to the agency’s expertise, and no mention of Chevron. Gorsuch threatened further mischief by stating that the “major questions doctrine” is similar to the “nondelegation doctrine,” under which in the early years of the New Deal the Court struck down laws which it found overly broad and amounted to an unconstitutional delegation of legislative authority to the executive branch. When President Roosevelt threatened to pack the Court, it quickly abandoned this doctrine, prompting the quip that “a switch in time saved 9.” While the two “doctrines” are thus different, Gorsuch’s mention of the long dormant nondelegation doctrine suggests that he will be looking for opportunities to resurrect it to cast aside statutory authority which he thinks is too broad. All of this bodes ill for almost any major federal regulation EPA might issue under statutes which were clearly intended to allow it to address a broad range of existing and future harms to human health and the environment whose specifics Congress did not foresee but nevertheless meant to regulate.
Seth Jaffe in a colorful January 31 blog asked, with alarm, “What’s Up With the Supreme Court?” Specifically, what is it up to in granting review of one case which challenges EPA’s clear authority to regulate GHG emissions, and another which provides an opportunity for the Court to write its own version of the Clean Water Act’s “Waters of the United States” rule at a time when that rule is in the process of being rewritten by the agencies. The OSHA vaccination case indicates that Seth’s fear of forthcoming judicial havoc is well placed.