Last month, the U.S. Supreme Court blocked the implementation of one of the Biden administration’s efforts to curb the spread of COVID-19 in the workplace by a vote of 6-3 along ideological lines. In doing so, the Court endangered the lives of thousands of Americans and risked prolonging the worst public health crisis in a century. Perhaps even more disturbing, the conservative majority signaled its willingness to severely curtail the authority of the entire federal government and effectively hoard power for itself to decide the nation’s policy.
The case NFIB v. OSHA concerned a standard promulgated by the Occupational Safety and Health Administration (OSHA). OSHA, a federal agency charged with protecting workplaces, required any business with 100 or more employees to either require its employees to be vaccinated or require unvaccinated employees to wear a mask in the workplace and routinely test for the COVID-19. OSHA estimated that the rule would prevent 250,000 hospitalizations and save more than 6,500 lives.
By enjoining the OSHA standard, the Court worsened the public health crisis just as the pandemic hit a new peak. On Monday, January 10th, the U.S. reported over 1.4 million new COVID-19 cases, a single-day total nearly five times larger than last winter’s single day record. Over 2,000 people are currently dying daily. As we’ve known since the beginning of the pandemic, COVID-19’s toll falls disproportionately on individuals with pre-existing medical conditions and disabilities, as well as the elderly, racial minorities, and those of lower socioeconomic status.
At issue in this case is whether OSHA had the authority to create this health and safety standard and whether Congress had delegated that ability to the OSHA. To put it simply: Congress told OSHA that the agency may do what is necessary to keep workplaces safe. OSHA does this by creating health and safety measures that businesses must follow. In this case, OSHA, relying on scientific data, decided that the best way to stop the spread of COVID-19 among workers was to tell large employers that their employees must either be vaccinated or be tested regularly for infection.
In the majority opinion, the Court’s conservatives held that Congress had not clearly delegated this authority to the agency. After expressing skepticism towards the breadth of OSHA’s health and safety measure, the majority noted that Congress had not authorized OSHA to take this type of action because, the majority claimed, COVID-19 is not an occupational hazard. COVID-19 affects people both inside and outside work, they reasoned, and OSHA is only authorized to create workplace safety rules, not public health measures.
To arrive at this outcome, the Court’s majority reinvented decades of administrative law on the fly. As the dissent noted, the Court’s majority was “impos[ing] a limit found no place in the governing statute.” OSHA has routinely addressed workplace hazards that also exist outside the workplace, including unsafe drinking water and fire hazards and the majority opinion cited shockingly little case law to void a desperately needed safety measure. The opinion’s writers believe that OSHA could not and should not be able to promulgate this safety measure, even though OSHA was doing exactly what Congress instructed it to do: protect workers from unsafe working conditions.
The Biden administration’s efforts are critical to saving thousands of lives. Many workers, especially hourly workers, have no choice but to go into work every day. They have no choice over who they interact with. They have no choice but to work in the kinds of enclosed spaces that make COVID-19 more transmissible. Workers have no choice about who they work alongside and whether those colleagues have been vaccinated against the virus. They have no choice whether they themselves or a loved one have a condition that makes them especially vulnerable to the virus. By limiting the spread of the virus in the workplace, OSHA’s safety measure was designed to prevent workers from being forced to weigh quitting their job in order to protect their own health and safety and that of their families.
Unfortunately, during oral argument, some members of the Court were far more concerned about a different choice: the choice to remain unvaccinated. The Court’s conservative jurists and the attorneys arguing against the health and safety measures expressed concern over workers being forced to quit their jobs because they choose to remain unvaccinated. But as Justice Elena Kagan so aptly pointed out, the federal government balanced these risks, just as Congress intended. Public health experts looked at the evidence and weighed the risks of being vaccinated or not vaccinated — of letting the virus continue to spread versus taking actions to curb its rampant growth. These experts crafted a policy to protect workers, both vaccinated and unvaccinated, from COVID-19 and stop the spread of the virus in the workplace based on the best available science. OSHA did exactly what Congress told it to do.
It is not surprising that the justices’ skepticism of the government here is far greater than workplace safety. Conservative jurists have expressed incredulity over the ability of the American people, through their elected officials and the federal government, to address critical, national problems. They claim that Congress alone can respond to new circumstances. Especially at a time when Congress is unable to act, for example because of the filibuster, these justices believe agencies like OSHA should be paralyzed to act. With the confirmations of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the Supreme Court may begin to unravel the ability of the federal government to address the needs of the American people altogether.
This dramatic shrinking of the government’s ability to act directly threatens the well-being of the country in ways far beyond the COVID-19 pandemic. It would upend our ability to alleviate climate change, to ensure the safety of military equipment used by our armed forces, to stop insurers or doctors from overcharging patients, to protect the nation’s food supply from disease, or to go after businesses and individuals who fail to pay millions in taxes. This philosophy threatens nearly every action of the federal government to protect the American people.
Conservative legal thinkers argue that their radical legal theories are simply about ensuring that Congress and not “unelected bureaucrats” are making the nation’s important decisions. But conservative politicians have spent the last fifteen years focused on two things: confirming conservative judges and stopping Congress from doing anything other than cutting taxes and confirming conservative judges. Put together, this means that Congress cannot act, and conservative judges can ensure our elected president also cannot act to combat the nation’s most pressing concerns, like COVID-19 or climate change, even when Congress expressly charges the president with doing so. If this philosophy is put in place, the most powerful branch of government will be the federal judiciary, a politically unaccountable body whose members serve for life.
On January 25, the Biden administration announced that OSHA was rescinding the temporary rule at issue in this case. This likely makes the case moot. OSHA said it remains committed to protecting workers and that it is still considering vaccine requirements as it develops its permanent COVID-19 Health Standard. Whether new challenges will arise to future rules remains to be seen.
Regardless of the rule’s recission, the Court’s ruling has already had detrimental effects in other legal cases. On Friday, January 21st, a Federal District Court Judge in Texas blocked the Biden administration’s vaccination requirement for federal workers. Judge Jeffrey Brown, a 2019 Trump appointee, specifically cited the Supreme Court’s NFIB v. OSHA ruling in blocking the regulation. Judge Brown noted that because the Supreme Court held that COVID-19 was not a workplace safety risk and that OSHA lacked authority to create safety measures combating the virus, the President similarly lacked authority to require federal employees to become vaccinated based on his ability to set standards for federal employees.
Even with this case likely over, we are left with the justices’ troubling opinions about who decides the nation’s policies. Will we allow public health experts to craft our public health policies? Will we allow agricultural experts to keep our groceries safe? Will we allow scientists to protect our planet from the devastating effects of climate change? Or will the conservative majority of the Supreme Court set the nation’s course? As COVID-19 explodes across the country, the stakes of this outcome could not be higher.