a review by Diane Rufino, January 13, 2022
NATIONAL FEDERATION OF INDEPENDENT BUSINESSES v. DEPARTMENT OF LABOR, OSHA
FACTS of the CASE:
The Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), enacted a vaccine mandate on November 5, 2021 for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. Applicants (Petitioners) now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, the Supreme Court grants their applications and stay the rule.
Congress enacted the Occupational Safety and Health Act in 1970. [84 Stat. 1590, 29 U.S.C. §651] The Act created the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor and under the supervision of its Secretary. As its name suggests, OSHA is tasked with ensuring occupational safety – that is, “safe and healthful working conditions.” §651(b). It does so by enforcing occupational safety and health standards promulgated by the Secretary. §655(b). Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” §652(8) They must also be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing. §655(b). The Act contains an exception to those ordinary notice- and-comment procedures for “emergency temporary standards.” §655(c)(1). Such standards may “take immediate effect upon publication in the Federal Register.” They are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full. See BST Holdings, LLC v. OSHA.
On September 9, 2021, President Biden announced “a new plan to require more Americans to be vaccinated.” As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” The purpose of the rule was to increase vaccination rates at “businesses all across America.” In tandem with other planned regulations, the administration’s goal was to impose “vaccine requirements” on “about 100 million Americans, two-thirds of all workers.” After a 2-month delay, the Secretary of Labor issued the promised emergency standard. [See 86 Fed. Reg. 61402 (2021)]. Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more employees. There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely illusory. In arbitrary and irrational fashion, the Secretary has estimated, for example, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. The regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers. OSHA estimates that 84.2 million employees are subject to its mandate. Covered employers must “develop, implement, and enforce a mandatory COVID–19 vaccination policy.” The employer must verify the vaccination status of each employee and maintain proof of it. (COVID vaccine certifications). The mandate does contain an “exception” for employers that require unvaccinated workers to “undergo [weekly] COVID19 testing and wear a face covering at work in lieu of vaccination.” But employers are not required to offer this option, and the emergency regulation purports to pre-empt state laws to the contrary. Unvaccinated employees who do not comply with OSHA’s rule must be “removed from the workplace.” And employers who commit violations face hefty fines: up to $13,653 for a standard violation, and up to $136,532 for a willful one. OSHA published its vaccine mandate on November 5, 2021. Scores of parties, including States, businesses, trade groups, and nonprofit organizations, filed petitions for review, with at least one petition arriving in each regional Court of Appeals. The cases were consolidated in the Sixth Circuit, which was selected at random pursuant to federal law [28 U.S.C. §2112(a)].
With the passage of Federal Statute 29 U.S.C. § 655(c)(1), Congress authorized OSHA (Occupational Safety & Health Agency) to issue “emergency” regulations upon determining that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and “that such emergency standards are necessary to protect employees from such dangers.” According to the agency, this provision supplies it with “almost unlimited discretion” to mandate new nationwide rules in response to the pandemic so long as those rules are “reasonably related” to workplace safety.
At issue in this case is the claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. It is instead a significant encroachment into the lives, and health, of vast number of employees. As petitioners asserted: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Supreme Court agreed that there is little doubt that OSHA’s mandate qualifies as an exercise of such authority. The question, then, is whether the Act plainly authorizes the Secretary’s mandate.
The Supreme Court concluded that it does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. [See 29 U.S.C. §655(b), directing the Secretary to set “occupational safety and health standards” and §655(c)(1), authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace]. Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
DECISION – written by Justices Gorsuch, Thomas, and Alito
The opinion opened with a review of the Supreme Court’s precedents. For one: There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the “general power of governing,” including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. [See the Tenth Amendment and the case National Federation of Independent Business v. Sebelius, aka, the “Obamacare” case, 2012]. And in fact, States have pursued a variety of measures in response to the current pandemic. Second: the federal government’s powers, however, are not general but limited and divided. [See the landmark case McCulloch v. Maryland, (1819). Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.”
OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, 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. Approximately two years have passed since this pandemic began and vaccines have been available for more than a year (with decreasing effectiveness).
How has OSHA replied? It points to provision 29 U.S.C. § 655(c)(1), in which Congress authorized OSHA to issue “emergency” regulations upon determining that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and “that such emergency standards are necessary to protect employees from such dangers.” According to OSHA, this provision authorizes it with “almost unlimited discretion” to mandate new nationwide rules in response to the pandemic so long as those rules are “reasonably related” to workplace safety.
The Court rightly applies the “Major Questions” doctrine, which says that states some issues are of such exceptional political and economic consequence that the courts will presume Congress did not intend to delegate the issue to agencies unless the statute is clear. In such cases, explicit, rather than implicit, delegation is necessary. The Court concluded that this lone statutory subsection does not clearly authorize OSHA with discretion to issue nationwide mandates related to workplace safety. Specifically for this case, it does not authorize the agency’s vaccine mandate.
Why does the “Major Questions” doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress. In this respect, the Major Questions doctrine is closely related to what is sometimes called the “Nondelegation” doctrine. Indeed, for decades courts have cited the nondelegation doctrine as a reason to apply the Major Questions doctrine. Both doctrines are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands. Whichever doctrine is applied, the point is the same because both serve to prevent “government by bureaucracy supplanting government by the people.” (quote taken from late Supreme Court Justice Antonin Scalia). And both hold their lessons for this case.
The question before the Supreme Court in this case was not how to respond to the pandemic, but who holds the power to do so. As Justice Gorsuch concluded: “The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not with OSHA. In saying this, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.”
Supreme Court opinion link: chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/viewer.html?pdfurl=https%3A%2F%2Fwww.supremecourt.gov%2Fopinions%2F21pdf%2F21a244_hgci.pdf&clen=173604&chunk=true
As expected, President Biden is very disappointed in the Supreme Court’s ruling on his administration’s vaccine policy. At a White House press conference today, he audaciously announced his administration’s stance: “It is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated.”
In other words, he is urging businesses to ignore the Supreme Court’s ruling. Hmmm, could this be treason? Could this be an impeachable offense? Imagine if President Dwight Eisenhower urged all schools in America to ignore the Brown v. Board of Education ruling? Imagine if President Richard Nixon tried to coerce abortion clinics across the country not to perform abortions?
Here is my question: If the government can publicly urge businesses and institutions to ignore a ruling of the Supreme Court, then wouldn’t it be just as fair for States to tell their people, as well as local businesses and institutions, to ignore Court rulings that they don’t agree with?