I teach constitutional law. My job is to explain to my students and to the public why courts do what they do. Last week’s Supreme Court’s decision, which blocked Biden’s mandate to protect workers from Covid, puts me in an embarrassing position. The Court’s opinion is so poorly reasoned that I cannot explain why the Court has decided to endanger millions and kill thousands.
Federal law commands the Occupational Safety and Health Administration (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.
The Court declared that OSHA was exceeding the authority that Congress had given it. This was manifestly untrue.
The Supreme Court’s unsigned opinion sternly declares that the statute “empowers the Secretary to set workplace safety standards, not broad public health measures.” It insists on distinguishing “between occupational risk and risk more generally,” and goes on to write:
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
It 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.”
But of course it’s causally tethered to the workplace. COVID has made workplaces sites of mortal danger – for millions, the most dangerous place they have to be. The United States doesn’t track infections on the job, but the number must be huge. 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.” Diminished health, functional capacity, or life expectancy are precisely what COVID threatens you with.
The dissenters – Breyer, Sotomayor, and Kagan – noted that the majority does not contest that COVID–19 is a “new hazard,” a “physically harmful agent,” or that it poses a “grave danger” to employees. They also emphasize that testing, masking, and vaccination are “necessary to prevent those harms.”
Gorsuch, concurring, offered a possible explanation for the Court’s decision, noting that the danger here was not “uniquely prevalent inside the workplace, like asbestos and rare chemicals.” But the statute’s protection is not confined to dangers “uniquely prevalent in the workplace,” a phrase that appears nowhere in the statute. The dissenters point out that “OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits.”
Gorsuch also wrote: “We expect Congress to speak clearly if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’”
OSHA claims to have the power to force 84 million Americans to receive a vaccine or undergo regular testing. But according to Gorsuch, “that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”
But you just saw the words of the statute. It is entirely clear. Gorsuch, who in other contexts has been a stickler for following plain language, seems to be presuming that Congress authorized OSHA to prevent dangers to a few workers, but not to millions. He has been remarkably cavalier about the worst public health emergency in American history.
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. Now those deaths and hospitalizations will happen. Alito asked Solicitor General Elizabeth Prelogar, if the Court puts the regulation on hold, “Are you going to say, well, they’re causing people to die every day?” It’s hard to keep people from saying that when, in fact, you are causing people to die every day.
The right-wing of the Court has been on a longstanding campaign to enfeeble the modern administrative state. A pandemic is undoubtedly the worst possible time to do that. New York Times reporter Linda Greenhouse has suggested that the Court was abandoning its longstanding rule that it defers to an agency’s construction of its own operating statute. But here the statute was so clear that OSHA didn’t need deference to justify its actions. The judges appear to be in the grip of a libertarian vision that holds that freedom can be promoted by hamstringing the capacities of government. So, they invent new, previously unheard-of limitations. Emergencies like Covid remind us, however, why a powerful and effective state is indispensable.
Today’s libertarians fear the expansion of state power and like to cite the abuses of Stalin and Mao. Those tyrants indeed created powerful, abusive states. But what was objectionable about these tyrants’ politics was what the Court just displayed: blithe willingness to accept quite a lot of death as the price of their utopia.
Andrew Koppelman
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.
