There's a key flaw in the Supreme Court's ruling against the OSHA vaccine rule

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

In a new ruling on Thursday, the six conservative justices on the U.S. Supreme Court blocked the Biden administration from implementing a sweeping requirement for vaccines under the Occupation Safety and Health Administration. Using OSHA's power to regulate employers, the administration sought to require any company with 100 workers or more to ensure that employees are either vaccinated against COVID-19 or are tested weekly for the virus.

Writing in a per curiam decision, the court's six-justice conservative majority used twisted logic to block the administration's plan. The three liberal justices wrote a joint dissent, arguing that the court's decision overstepped its own authority. (In a separate case decided at the same time, conservative Justices Brett Kavanaugh and John Roberts joined the liberals to uphold the administration's mandate requiring vaccination for health care workers at facilities receiving funds from Medicaid and Medicare.)

To justify its opposition to the OSHA vaccination rule, the majority argued that the administration exceeded the authority delegated by Congress. But to come to the conclusion, it had to use a rather bizarre and seemingly contradictory line of reasoning.

The decision explained:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” ... She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. [emphasis original]

It's hard to figure out what this last sentence really means. It's essentially saying, "Though COVID-19 is a danger in the workplace, it's not a workplace danger." The phrasing tries to dance around this obvious contradiction by using the word "occupational" instead of "workplace," by inserting meaningless italics, and by appending the words "in most" at the end — without justifying or explaining their inclusion or relevance. But don't get confused. The court's claim is just nonsensical.

What the majority wanted to say is that COVID-19 is not a distinctively work-related threat. And that is clearly so. But the court never actually showed that the law requires that a threat be distinctively work-related in order to be regulated because that's not what the law says. It must be "work-related," as the solicitor general acknowledged.

The next sentence in the decision only further highlights the majority's confused reasoning: "COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather."

Two of the examples listed here, schools and sporting events, are workplaces for many people. So while trying to insist that the virus is much more than a workplace hazard, the conservative justices really just showed that our workplaces are much more entangled with the rest of our lives than they'd like to admit. This counts in favor of dismissing the supposed difference between workplace hazards and generalized hazards, rather than resting a crucial decision on the supposed distinction.

Moreover, the conservative justices failed to acknowledge an obvious point: For many, many people, the workplace is likely by far the most dangerous place for them in terms of COVID risk. They have little choice about whether and when to go, who they will be working with, and under what conditions. OSHA's vaccine and testing requirements would make them safer from the virus than they would be otherwise, including in the broad scope of all their other daily activities. This is a clear way in which the risk from COVID-19 is distinctly occupational. But somehow, the majority wants us to believe that this isn't a matter of workplace safety.

A later paragraph in the majority decision better reveals what is really driving the conservatives' view:

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”

Here, the justices admit that COVID-19 can be a workplace hazard. But what they fear is that the administration is using the OSHA rule in an "indiscriminate" way as a public health measure. There's nothing in the law to prohibit the administration from doing this, and there's no clean distinction between public health and workplace safety anyway, as the schools and sporting events examples show. The conservatives just worked backward from their conclusion that they didn't like what the Biden administration had done, and they had to use twisted logic to justify their decision legally.

As the liberals pointed out in dissent, there's nothing in the law to justify the majority's distinction between workplace hazards and more general public health hazards:

Of course, the majority is correct that OSHA is not a roving public health regulator, see ante, at 6–7: It has power only to protect employees from workplace hazards. But as just explained, that is exactly what the Standard does. See supra, at 5–6. And the Act requires nothing more: Contra the majority, it is indifferent to whether a hazard in the workplace is also found elsewhere. The statute generally charges OSHA with “assur[ing] so far as possible . . . safe and healthful working conditions.” 29 U. S. C. §651(b). That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.

So the majority invented a distinction not found in the text of the law to limit the administration's authority. It claimed that if Congress really wanted the administration to have the authority to require workers to be vaccinated, it could have written that into the law. But the logic applies even more forcefully in reverse. Had Congress had wanted to restrain the scope of OSHA further than what the text itself says, lawmakers also could have done that. They didn't.

Instead, the majority cites the fact that the Senate recently issued a majority vote of disapproval of the administration's use of the OSHA rule. But that's less telling for what it was than for what it wasn't: actual action by Congress to restrict the administration's authority. The mere opinions of a group of senators is not binding on the executive or judicial branches, and they don't belong in Supreme Court decision.

The fact that the conservative majority was willing to block the administration's action on such obviously flimsy and flawed reasoning is a disturbing sign for what might be coming if the Supreme Court remains in its current form.

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