In a recent remark, I contrasted the pragmatic consequentialism of outgoing Supreme Court Justice Stephen Breyer – and, more generally, of the two other members of the Court’s liberal bloc (Justices Sonia Sotomayor and Elena Kagan) – with the structural formalism of the conservative supermajority of six judges of the Court. I also suggested that this framework might provide a more useful way of understanding many of the Court’s recent and upcoming blockbuster decisions than the partisan angle that court watchers so frequently use.
It would be hard to find a better example of a case involving these competing judicial approaches than the Court’s recent decision in National Federation of Independent Businesses c. Department of Labor, Occupational Safety and Health Administration (OSHA), which suspended the Biden administration’s emergency regulations requiring much of the nation’s workforce to be vaccinated against COVID-19 or mask and undergo weekly testing. At first glance, the case appears to be just a disagreement over the scope of a federal law. But in truth, it lays bare fundamentally different interpretations of the constitutional limits on federal regulatory power and the role the Supreme Court should play in enforcing those limits. Indeed, the case – and in particular the concurring opinion of Justice Neil Gorsuch, who was joined by Justices Clarence Thomas and Samuel Alito – may well serve as a roadmap for how the Conservative majority might dismantle vast areas of federal regulatory power in the years to come.
Here is the context. In 1970, Congress enacted the Occupational Safety and Health Act, which created OSHA. The law mandates OSHA to ensure workplace safety by enforcing occupational safety and health standards promulgated by the Secretary of Labor. It also requires OSHA to issue “temporary emergency standards” after determining “(A) that employees are at serious risk of exposure to substances or agents found to be toxic or physically harmful or to new hazards, and (B) that this emergency standard is necessary to protect employees from harm.
Believing that COVID-19 was such a danger and that emergency temporary action was necessary, OSHA issued a standard that required employers of at least 100 employees to require employees to be vaccinated or wear masks and testing on a weekly basis. The temporary standard contained several exceptions, for example for employees who work from home, alone or outside. It also contained exceptions for religious objections or medical necessity, and it allowed an employer to exempt themselves from coverage if they could demonstrate that their “conditions, practices, means, methods, operations, or processes” make their place “safe and healthy” work. “It was supposed to last six months.
Several lawsuits challenging the standard and seeking a stay of its implementation have been filed and consolidated in the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit denied the stay request, dissolved a stay granted by another court, and allowed the standard to take effect. But the challengers convinced the Supreme Court to step in and grant a stay by a 6-3 vote.
The majority opinion, which was unsigned, found that OSHA likely acted beyond its statutory authority because the standard had “broad economic and political significance” and was not “clearly” authorized. by the law. The standard, the majority said, was a broad public health measure and not a workplace safety standard. The risk of contracting COVID-19, although present in the workplace, also presents itself at home, in schools, at sporting events and other gathering places. “This type of risk,” explained the majority, “is no different from the everyday dangers that all face from crime, air pollution, or any number of communicable diseases. Allowing OSHA to regulate the hazards of everyday life – simply because most Americans have jobs and face these same hazards while working – would greatly expand OSHA’s regulatory authority without clear authorization from Congress.
The dissent, co-signed by Justices Breyer, Sotomayor, and Kagan, asserted that the majority acted outside of its jurisdiction and without a legal basis to impede the federal government’s ability to counter the unprecedented threat that COVID-19 poses to workers in the country. (Co-signing an opinion is rare and is generally understood to communicate that the authors’ views on the matter are particularly strongly held.) In the dissent’s view, OSHA acted more than reasonably in concluding that COVID- 19, which as of mid-January had killed more than 725,000 Americans and hospitalized millions more, was both a “new danger” and a “physically harmful agent” that posed a “grave danger” against which it was “necessary to protect” the nation’s employees.
Dissenters were particularly critical of the majority’s conclusion that the standard was not a “workplace safety standard”, as COVID-19 is also spreading beyond the walls of the workplace. According to the dissent, nothing in the text of the statute suggests an intent to prevent OSHA from regulating occupational hazards that may also be found outside the workplace. It is false logic and contrary to the text and purpose of the law that Congress enacted to hold that something cannot be an occupational safety standard if it is also a measure of broader public health.
Perhaps recognizing the relative weakness of the reasoning in the unsigned majority opinion, Justice Gorsuch wrote a concurring opinion (joined by Justices Thomas and Alito) that supported the majority’s position with more explicit structural and constitutional arguments. It is these arguments — if adopted in future cases by at least two other members of the court’s conservative majority — that could lead to a significant rollback of federal regulatory authority.
Judge Gorsuch began his concurring opinion by stating that “[t]he central question we face today is: who decides? He then sought to answer the question by observing that the Constitution establishes two default rules when it comes to legislating of the type embodied in the norm. First, our separation of powers between the federal government and the states (known as our federalism) establishes a presumption that state and local authorities must regulate public health, subject to federal displacement only when the federal government acts within an enumerated constitutional power. Second, our horizontal separation of federal powers establishes a second presumption that Congress must speak out if it wishes to assign an executive agency such as OSHA the power to make rules of “broad economic and Politics “. He dubbed the latter principle, adopted by some of the Court’s conservative members in recent administrative law decisions, the “major issues doctrine.”
In Justice Gorsuch’s view, the standard failed the test established by the major issues doctrine. As he said: “[OSHA] claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, it is a claim to power to resolve an issue of great national importance. Yet nowhere has Congress clearly assigned so much power to OSHA. In addition, Justice Gorsuch argued, if one read the statutory language upon which OSHA relied as clearly conferring the power to enact the standard, we would have another constitutional problem: that of Congress delegating its legislative powers to non-elected executive officials in violation of the “doctrine of non-delegation”. In our constitutional system, Justice Gorsuch said, only Congress can exercise legislative power.
(As an aside, before concluding that the court’s conservative majority would have agreed with Congress itself imposing a national vaccination or mask-and-testing mandate, recall the court’s 2012 ruling in National Federation of Independent Businesses c. Sebelius. In that case, a 5-4 conservative majority ruled that the “individual mandate” of the Affordable Care Act, which required most Americans to buy health insurance or pay a fine, was beyond the power of Congress to regulate interstate commerce because it regulated commercial “inaction” rather than “activity”. How would congressional enactment of a vaccination or mask and test mandate be different?)
Do you see the implications for federal regulatory power if a majority of courts were to adopt Justice Gorsuch’s approach? Imagine, for example, that in response to the climate crisis, the Federal Environmental Protection Agency (EPA) invokes its authority under the federal Clean Air Act to issue regulations that dramatically reduce CO2 emissions. Wouldn’t the conservative majority in the courts characterize such regulations as having “broad economic and political significance”? If so, the major issues doctrine would suggest that the EPA exceeded its statutory authority. And if it’s not – if, in other words, the court agreed with the EPA that the Clean Air Act did indeed authorize the regulation – then we would have a problem under the doctrine of non-delegation: that of Congress unconstitutionally delegating its legislative power to an executive agency.
The concurring opinion of Justice Gorsuch, joined by Justices Thomas and Alito, suggests a future where, in exercising regulatory power, federal agencies will have to navigate between the Scylla doctrine of major issues and the charybdis of the doctrine of no -delegation. It remains to be seen how many federal regulations will survive this perilous journey.
Before concluding, I must note that the three dissenters – Judges Breyer, Sotomayor and Kagan – have not left the “Who decides?” by Judge Gorsuch. unanswered question. Here’s what they said: “Underlying everything else in this dispute is a single, simple question: Who decides how much and what kind of protection American workers need from COVID-19? An agency with occupational health and safety expertise, acting as Congress and the authorized president? Or a court, which does not know how to protect workplaces and is not responsible for the damage it causes.
This is the language of pragmatic consequentialism. This is not the kind of language we should expect to see in a Supreme Court majority opinion anytime soon.