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OSHA Vaccinate or Test Rule Challenges Conservative Justices

Jan. 12, 2022, 9:00 AM

Whether you think the conservative capture of the U.S. Supreme Court is a rule-of-law car wreck or the overdue resurrection of original principles, the Jan. 7 argument on whether to grant a stay of the Occupational Health and Safety Administration’s (OSHA) private sector “vaccinate or test” rule was disconcerting.

Searching for a legal theory that would postpone compliance with the rule until they eviscerate it on the merits, the conservative justices lurched through statutory interpretation, states’ rights, and the “major questions” doctrine. In the end, they appeared to settle on the notion that requiring 80 million people to get vaccinated or get tested was just too big a lift for a bedraggled agency operating under an “old” law.

Post mortems trumpeted doom for Biden’s “virus plan,” and they are probably right. But more than the plan is at stake. The new majority on the court could write a decision plowing a massive loophole in the long-settled assumption that the federal government must play a major role in protecting public health and worker safety from deadly diseases caused by everything from pandemics to toxic pollution.

Frightening Implications

No mainstream legal theory, grounded in mainstream precedent, justifies killing this rule. If the justices swing so wide, the implications are frightening.

The mandate that employees either vaccinate or test (opponents have falsely labeled it a “vaccine mandate”) was issued in November 2021 as an emergency temporary standard. OSHA’s authorizing statute mandates such standards without requiring the agency to pause for public comments if employees are exposed to “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” (Emphasis added.)

Petitioners for the stay, a group that included not just the usual roster of small businesses and right-wing think tanks, but also evangelical organizations and the Republican National Committee, conflated “toxic” with “physical harm,” arguing that OSHA should be limited to controlling hazards like dangerous chemicals emanating only from the workplace, as opposed to biological agents.

Solicitor General Elizabeth Prelogar replied that the statute did not restrict the agency because possible regulatory targets were joined by “or,” not “and,” and that OSHA protected medical workers by regulating blood borne pathogens years ago. Conservative justices were not persuaded and moved on.

Conservative Justices Criticize Rule as Excessive

Led by Justice Amy Coney Barrett, conservatives complained that the emergency standard was overly broad because it adopted arbitrary exemptions. The rule exempts employers with fewer than 100 employees and allows religious objectors to test rather than vaccinate.

It applies to indoor employment across the spectrum of risk, from office work to meatpacking. The conservative justices nibbled at this array, but in the face of running commentary by liberal justices regarding the horrors of the pandemic, they seemed unable to settle on these mincing objections.

Aficionados of states’ rights had their moment in the sun when petitioners argued that traditional American jurisprudence confines to state and local governments the “police powers” necessary to mandate vaccination and other pandemic controls. At times, the argument sounded like an outright challenge to the Constitution’s Interstate Commerce clause, which has been the longstanding basis for federal intervention in a broad array of areas.

Conservative dogma holds that the courts have expanded interstate commerce far beyond what the framers intended. As the court’s ultra-conservative supermajority settles in, some shrinkage is inevitable.

Yet concluding that in the face of a global pandemic, the states should fend entirely for themselves seems awkward. After all, President Trump tried to unload federal responsibility with disastrous results.

True, the hard core of the Republican base opposes intervention by any government entity regarding vaccines, masks, tests, or any other measure. But Chief Justice John Roberts, the court’s self-appointed political adviser, undoubtedly worries about the fallout from such an extreme position.

‘Major Questions Doctrine’

Last up is the so-called “major questions doctrine,” or, more accurately, what Georgetown University law professor Lisa Heinzerling calls one of the “power canons of statutory interpretation.” It addresses whether an agency action is just too audacious in political or economic terms to survive, despite the relevant statutory language.

Instead, conservatives argue, Congress must step up and specifically authorize agencies to proceed. These days, the canon often means doing nothing at all.

Shrewdly, petitioners’ lawyer Scott Keller warned that the OSHA “mandate” would cause “a massive economic shift” and result in “billions upon billions of non-recoverable costs” for his clients. Justice Samuel Alito agreed, describing OSHA’s action as “squeezing an elephant into a mousehole.” But the firmest stance was taken by Roberts, who opined that OSHA depended on an old law, enacted 50 years ago, that could not give it “free rein” to issue a policy with such mammoth implications.

In the context of the pandemic and, specifically, the omicron wave now sweeping the country, the conservative justices’ apparent eagerness to block the rule has life and death ramifications. If this is the direction the conservative justices go, we will be in a situation where any “old” law they do not like can be whisked off the table, shaking the bedrock of the Constitution’s Article 1: The legislature makes the laws and the legislature must repeal or amend them.

Instead, unelected judges with lifetime appointments will have taken over, an outcome shattering in its implications.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Rena Steinzor is a professor at the University of Maryland School of Law. She has worked for the Federal Trade Commission, as a congressional lawyer reauthorizing the Environmental Protection Agency’s Superfund program, at a firm representing local governments concerned about regulatory compliance, as counsel to citizen groups advocating before the EPA, and as a teacher of administrative law for 45 years.