The Supreme Court, vaccination and government by Fox News

Suppose Congress passed a law commanding the Occupational Safety and Health Administration (OSHA) to prevent deadly dangers in the workplace, and to act quickly if those dangers arise unexpectedly. And then suppose the Supreme Court declared that the bigger the emergency is, the less power OSHA has. OSHA can move fast to prevent a few bad injuries, but not if hundreds of thousands are dying.

That is, in essence, what the Supreme Court said on Thursday.

Federal law commands OSHA to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” when the standard is “necessary to protect employees from such danger.” 

The Biden administration directed employers with 100 or more employees to require that their workers either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work. (In another case, the Court upheld a vaccine mandate for health care workers, but I’ll focus here on the OSHA rule. 

The regulation was challenged, naturally. The objection that most moved the Republican-appointed majority is that, even though the words of the statute support what the agency has done, the regulation is still barred by a newly minted mutation of the “major questions” doctrine. That doctrine, Justice Antonin Scalia explained in 2014, declares that the Court should be skeptical if an agency “claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy.’” It is a response to statutory ambiguity: “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” 

Scalia’s rule is not the problem. The statute isn’t ambiguous. The dissenters, Stephen Breyer, Sonia Sotomayor and Elena Kagan, note “the majority does not contest that COVID–19 is a ‘new hazard’ and ‘physically harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.” 

The Court, however, in an unsigned opinion, introduced a new constraint on OSHA — one that, as the dissenters emphasized, appears nowhere in the statute. COVID-19 is indeed a danger in workplaces. Indeed, many of those who have died of COVID contracted it at work. But it is not a danger unique to the workplace, and the statute “empowers the Secretary to set workplace safety standards, not broad public health measures.”

But OSHA didn’t try to regulate outside the workplace. The majority repeatedly evades this point. It insists on distinguishing “between occupational risk and risk more generally,” but the rule makes precisely that distinction. The Court claims that the agency “has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” You go to work, you catch COVID, you die. Why isn’t that enough causal tethering? 

The court appears to implicitly follow the concurring opinion of Justice Neil Gorsuch, joined by Clarence Thomas and Samuel Alito, that in the past, OSHA has used its emergency authority “to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.”

But you’re just as dead even if you were killed by something that isn’t “uniquely prevalent in the workplace.” That isn’t news. The dissenters respond that “OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits.”

Congress did not care whether a danger was unique to the workplace. The statute expressly aims to “assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.” 

Why would these judges defy the plain words of the law? The mask-or-vaccination question is too major for Congress to delegate it to the agency. Justice Brett Kavanaugh has claimed (endorsing an opinion by Gorsuch) that “congressional delegations to agencies of authority to decide major policy questions” are unconstitutional. Kagan noted at the oral argument that this would mean, “because the agency action is a kind of a big deal, we’re just going to ignore the fact that it falls clearly within the scope of the delegated authority.”

The result would be unchecked judicial power, since no one could anticipate what counts as “major policy questions.” At argument, Kavanaugh acknowledged the difficulty of “figuring out when something is major enough.” In the end, he was undeterred.

In practice this crucial legal issue will probably be determined by the latest Fox News tirade. OSHA’s power to prevent thousands of deaths wasn’t a major policy question until the Republican Party started fighting efforts to contain COVID. The Court declared that vaccination “cannot be undone at the end of the workday.” (Never mind that testing was an alternative.)

Gorsuch thought it was a big deal to “induce individuals to un­dertake a medical procedure that affects their lives outside the workplace.” Affects them how? By letting them safely go home to their families? By preventing them from infecting coworkers? A protection from workplace hazards that persists after work wouldn’t bother anyone who had not been listening to antivaxxer pundits.

OSHA estimated (and the Court did not dispute) that, in the first six months, its rule would prevent 6,500 deaths and 250,000 hospitalizations. With the advent of omicron, those are likely undercounts. Now those deaths and hospitalizations will happen. Alito demanded of Solicitor General Elizabeth Prelogar that, if the Court puts the regulation on hold, “Are you going to say, well, they’re causing people to die every day?” If you want to avoid being accused of killing people, you might try not killing people.

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.