A Corporate Bordello of COVID Contagion: The Trump Supreme Court is Officially All In with the Lysol Death Cult!
David Shasha
COVID Is an Emergency. To SCOTUS’s Conservatives, It’s Also an Opportunity.
By: Dahlia Lithwick and Mark Joseph Stern
A majority of the justices on the Supreme Court may not see COVID-19 as an emergency. But they do see it as an opportunity. This unprecedented pandemic, the deadliest in American history, has forced the executive branch to act swiftly and creatively at each stage of the crisis. Facing an often-deadlocked Congress, President Joe Biden has drawn on old statutes to establish new regulations to stop the coronavirus from spreading and killing more people. Yet in so doing, he has given the Supreme Court’s Republican-appointed justices a chance to hobble his whole agenda. And during oral arguments over Biden’s vaccine mandates on Friday, these justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well.
Friday’s arguments revolved around two rules issued by the Biden administration. The first, which we’ll call the employer mandate, was issued by the Occupational Safety and Health Administration. It imposes a requirement on companies with 100 or more employees: Workers must either get vaccinated against COVID-19 or wear a mask at work and undergo weekly testing. The second, which we’ll call the health care mandate, was issued by the Department of Health and Human Services. It obligates hospitals and other care facilities that accept Medicare and Medicaid funds, which is most hospitals, to issue a vaccine mandate for workers. This mandate includes medical and religious exemptions. A coalition of red-state attorneys general challenged both rules, and after the lower courts divided, the Supreme Court scheduled a special Friday session to decide their fate.
And what a session it was. The nihilism, hypocrisy, and armchair epidemiology on display at times bled into rank anti-vax-ism. The conservative supermajority did not bother to conceal its contempt for the Biden administration’s effort to root new policies in old statutes. As the basis for its employer mandate OSHA cited a federal law that permits it to issue an “emergency temporary standard” when it determines that it’s “necessary” to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” The coronavirus is both an infectious “agent” and a “new hazard” that poses a “grave danger.” So OSHA’s vaccinate-or-test regime fits pretty neatly into Congress’ mandate. But the Republican-appointed justices appeared to begin with the premise that existing law could not possibly authorize this rule, then worked backward to justify their skepticism.
That’s because these justices emerged from a conservative legal movement that has grown obsessed with obliterating “the administrative state”—the hundreds of federal agencies that actually implement laws passed by Congress. Because Congress cannot anticipate every future problem, it has long given these agencies broad mandates to accomplish some overarching goal however their experts see fit. For instance, lawmakers charged the public health experts at OSHA with determining how best to protect Americans from dangers in the workplace. They did not try to predict every hazard that might arise; instead, they simply tasked the agency with deciding how best to confront the most catastrophic risks to American workers.
To the conservative justices, this approach to governance is a betrayal of the constitutional order. Citing hazy theories that appear nowhere in the Constitution—the “nondelegation doctrine,” the “major questions” doctrine (and the “it must be illegal if I hate it” doctrine)—they have sought to strike down these delegations as unconstitutional. Or, at a minimum, they have interpreted the delegations so narrowly as to strip agencies of all their power and discretion, ostensibly to avoid “constitutional concerns.” This tactic was on full display throughout Friday’s marathon arguments. Chief Justice John Roberts, initially thought to be a swing vote, led the charge, chastising the Biden administration for seeking a “workaround.” (This quote was an apparent allusion to chief of staff Ron Klain’s retweet of a reporter who described the employer mandate as a “work-around,” which lower courts fixated on as apparent proof of bad faith.) Roberts accused the administration of “trying to work across the waterfront,” searching for laws that might empower agencies to mandate vaccines and then “picking them off one by one.”
The chief justice continued: “It seems to me that the more and more mandates pop up in different agencies, I wonder if it’s not fair for us to look at the court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this?”
To be clear, this approach is not how statutory interpretation works. The Supreme Court is supposed to ask whether a federal law properly authorizes an agency’s action. It is not supposed to ask whether an agency’s action is just one part of a nefarious plot to “work around” congressional inaction. But then again, Roberts’ usual principles were glaringly absent on Friday. Later, he faulted OSHA for relying on a statute passed “50 years ago,” a time “almost closer to the Spanish flu than it is to today’s problem.” Does the chief justice think federal laws have an expiration date? If so, he should reconsider his own forced arbitration jurisprudence, which is rooted in a 1925 law and not remotely intended for use against consumers and workers.
At least the chief—alone among the court’s right flank—appeared to understand that COVID-19 is a legitimate and horrific health crisis. None of his fellow conservatives really acknowledged this reality, though the signs were all around them. Two attorneys attacking the vaccine rules have tested positive for COVID-19 and participated remotely. Justice Sonia Sotomayor, who is at high risk of serious illness should she contract the coronavirus, also participated remotely. All of the justices except Neil Gorsuch opted to wear masks.The Supreme Court has strict protocols in place in its workplace because you can, in fact, catch and transmit COVID-19 in your workplace.
No wonder the general sensibility on the court’s left flank seemed to be astonished disbelief at the conservative line of questioning. Perhaps the best marker of the breadth of the gaslighting on display was the astonishment evidenced by some of the progressive justices that this argument was taking place at all, much less in the midst of a massive surge in coronavirus cases in January. As Justice Stephen Breyer put it during the employer mandate argument: “Are you still asking us to issue a stay and stop this from taking effect? … There were three-quarters of a million new cases yesterday. … That’s 10 times as many as when OSHA put this rule in. The hospitals are today, yesterday, full.” Or in Justice Elena Kagan’s stunned words: “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts.”
The issue before the court is a stay, or freeze, of Biden’s mandates. This process requires balancing the potential harms to each side. To Justice Sam Alito, the need for a stay is urgent and exigent. Whereas, in the S.B. 8 context, the immediate loss of the right to abortion at six weeks was not an emergency, in the context of the new vaccine rules, the constitutional burden is so acute that it must be stayed. Alito seems to be more interested in managing his public image than in the thousands of people who are sick and dying. If the court needs a few days to decide whether to impose an administrative stay, Alito thundered at Solicitor General Elizabeth Prelogar, “Are you going to say, well, they’re causing people to die every day?” He wanted her assurance that the justices could take “time to digest this case and decide it,” without being accused of needlessly inflicting horrible consequences.
The anti-vax sentiments surfaced in earnest when Alito hounded Prelogar about the risks of vaccines. He insisted that he didn’t want to be misunderstood: “I’m not saying the vaccines are unsafe. The FDA has approved them. It’s found that they’re safe. It says that the benefits greatly outweigh the risks.” However, he then insisted, some people will suffer “adverse consequences,” because “there is some risk.” Prelogar reiterated that the Food and Drug Administration has found vaccines are safe and effective “by orders of magnitude.” Because he now sounded like he was spreading anti-vax madness and the press would report that fact truthfully, Alito scolded Prelogar: “I’m not making that point. I’m not making that point. I’m not making that point. There is a risk.”
“I’m not making that point that I am making” is the way cases are discussed now. Government officials and Supreme Court justices can just insist that vaccines are safe and important and also dangerous and bad. Pick your own facts about the danger of COVID-19 and the efficacy of vaccines. It’s your constitutional right to be for and against public health at the same time.
Arguments over the health care mandate went somewhat better for the government, though they were not a slam dunk. In an encouraging sign, the chief justice asked Louisiana Solicitor General Liz Murrill—arguing remotely, because she evidently has COVID-19—to respond to a district court judge’s claim that the pandemic is essentially over. She declined to do so, stepping back from her own briefs in which she downplayed the threat of the virus. Justices Brett Kavanaugh and Amy Coney Barrett, who scorned the employer mandate in unambiguous terms, also sounded uncertain about the challenge to the health care mandate. There may be a glimmer of hope that these justices will let the federal government instruct hospitals not to “kill your patients” with COVID-19, in Kagan’s memorable words.
During arguments, the liberal justices were forced to address the merits arguments while also tamping down the anti-science hysteria of the opposing side. For instance, Ohio Solicitor General Benjamin Flowers insisted that vaccines probably don’t stop spread or transmission since he himself has COVID-19 despite being vaccinated. Gorsuch repeatedly likened COVID to the flu. And so Kagan had to clarify that if the OSHA mandate goes into effect, people will have to wear masks on Monday. In the health care case, Kagan was again forced to clarify that nobody will be fired tomorrow if the mandate goes into effect. So acute is the contagion of medical misinformation coming from the court itself that the three liberals had to keep clarifying—for themselves as much as the public—that the government is not proposing an Orwellian employment hellscape so much as safe and effective mitigation efforts for a lethal virus that is emptying workplaces, filling hospitals, and debilitating medical professionals.
Government efforts to ameliorate these problems would have been rational two years ago, and have been deemed rational for decades. But today, five or possibly six justices find that entire concept nefarious, science and law notwithstanding.
From Slate, January 7, 2022
Why Doesn’t the Supreme Court Want Workers to Be As Safe From Covid as They Are?
By: Elie Mystal
All the Supreme Court justices are vaccinated. The court, moreover, was an early adopter of remote working to keep the justices safe, and even as they’ve gone back to the court in person, they still require Covid testing of those who will argue in front of them. It would seem the nine people who can be removed from power only by death are taking the best available precautions to stay alive.
While the conservative justices are willing to protect themselves from getting sick at work, however, they’re unwilling to extend those protections to the American worker. The Supreme Court heard two cases involving some of the Biden administration’s chief Covid-19 workplace safety requirements last week. In at least one of them, the conservatives who enjoy the privilege of working in a vaccinated and safe environment seemed poised to deny that privilege to others.
Their hypocrisy would be more shocking if they weren’t Republicans.
The most important case is called National Federation of Independent Business v. Department of Labor. It dealt with Biden’s rule for businesses with more than 100 employees, a rule issued through the Occupational Health and Safety Administration (OSHA). It’s a little inaccurate to call the OSHA requirement a “vaccine mandate.” In fact, the OSHA rules say that employees have to be vaccinated or if unvaccinated they have to be tested and masked or they have to be sent home.
I’ve said many times that it would be flatly unconstitutional for the government to force people to put something into their bodies against their will. That would be a violation of their Fourth Amendment rights. Nobody is talking about forced vaccinations by a government agency, and anybody who says that’s what Biden is doing is either uninformed or (more likely) purposely spewing misinformation.
Instead, the OSHA rule says “vax, or get tested and masked, or work from home, or find a new job.” It is squarely within the government’s authority to set workplace safety regulations. OSHA can, and does, regulate the air quality in workplaces; it can certainly regulate how much coronavirus a person can spew on their coworkers.
But the argument that the government has the authority and responsibility to keep workers safe was not good enough for the conservatives on the court. That’s not necessarily because the conservative justices have been infected by the anti-vax strain of stupidity that has taken root in corners of the country. Again, all the justices are vaccinated.
No, the problem for conservatives is the theory that the government can protect the rights of workers. All of the court’s conservative justices come from the long Republican tradition of being anti-labor. They do not believe in raising the costs to business owners for such pedestrian reasons as workplace safety. These conservatives have always been against agencies like OSHA and currently believe they have the votes to effectively neuter the executive branch. As Dahlia Lithwick and Mark Joseph Stern wrote in Slate, “these justices emerged from a conservative legal movement that has grown obsessed with obliterating ‘the administrative state’—the hundreds of federal agencies that actually implement laws passed by Congress.”
If a few hundred thousand people have to die from a communicable disease for conservatives to hobble an agency they’ve long hated, like OSHA, that’s a price the conservatives seem willing to pay. All six of the justices appointed by Republican presidents seemed to take a dim view of OSHA regulations regarding the vaccine.
It’s worth noting that two of the lawyers arguing the anti-vax case had to do so remotely, because they failed the Covid test they were mandated to take before appearing at the court in-person. The hypocrisy of these six conservatives’ enjoying all kinds of Covid safety measures while prohibiting the government from mandating basic protections for American workers would have been comical if it weren’t so outrageous and gross.
The second vaccine-based case went a little bit better for workers, if only because the conservative justices kept their mouths shut for most of it. The case is called Biden v. Missouri. At issue is a Biden administration rule that says health care workers at facilities that receive Medicare or Medicaid funding must be vaccinated, unless they have a religious exemption.
This case isn’t just about keeping other health care workers safe; it’s about keeping patients safe (consider the particularly high-risk demographic that is patients who receive Medicare). The government regulates all types of safety requirements for health care facilities and the people who work in them. It is truly unconscionable to think that the health care worker who works in a nursing home could somehow not be required to get vaccinated or get to updating their résumé.
I’d be remiss if I didn’t note that the same logic should apply to people who cite a so-called “religious” exemption. If you think you can pray the ’rona away, you shouldn’t be allowed to provide federally sponsored health services, much less do so while unvaccinated. But the Biden administration knows that without a religious exemption, the theocrats on the court would act like the Biden regulation was demonically possessed by Pazuzu, so I suppose the religious exemption was the better part of valor.
Even with that concession to conservative ideology, it’s not clear that the conservatives on the court will go for it. They were less hostile toward the Medicare and Medicaid requirement than they were toward the OSHA requirement. But, honestly, the Republican-aligned lawyers arguing the anti-vax case put on one of the worst Supreme Court oral arguments I’ve heard. They were easily flustered and not really able to follow the justices’ questions, much less answer them. It was hard to tell if the conservative justices were silent because they disagreed or because the whole thing was just embarrassing for their side of the argument.
As Covid cases soar because of the Omicron variant, it’s always possible that a couple of the conservative justices will blink. Consigning the country to even more sickness and death to score an ideological goal against the administrative state might be heralded in Federalist Society cigar bars but will be condemned by history.
Still, I do not think the conservatives will back off. I think the conservatives will do what Republicans placed them on the Supreme Court to do. This is not about medicine versus religion or science versus YouTube research. This is about American business owners versus American workers, and conservatives always treat businesses as people and people as profit centers. The conservatives don’t have to be anti-vax when they’re already anti-labor.
From The Nation, January 10, 2022
Supreme Court Blocks Biden’s Vaccine Mandate for Large Employers
By: Adam Liptak
WASHINGTON — The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers, dealing a blow to a key element of the White House’s plan to address the pandemic as coronavirus cases resulting from the Omicron variant are on the rise.
But in a modest victory for President Biden, the court allowed a more limited mandate requiring health care workers at facilities receiving federal money to be vaccinated.
The vote in the employer mandate case was 6 to 3, with the liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority.
The employer decision undercut one of President Biden’s most significant attempts to tame the virus and left the country with a patchwork of state laws and policies, largely leaving companies and businesses on their own.
The president welcomed the ruling in his favor, saying in a statement that it would save the lives of health care workers and patients. But he said he was disappointed that the court had overturned the employer mandate, which he said was “grounded squarely in both science and the law.”
In both the employer and health worker cases, the justices explored whether Congress had authorized the executive branch to take sweeping actions to address the health care crisis.
The unsigned majority opinion in the employer case said a statute on workplace hazards did not justify a mandate that would have required more than 80 million workers to be vaccinated against the coronavirus or to wear masks and be tested weekly. It also stressed the novelty and sweep of the mandate issued by the Labor Department’s Occupational Safety and Health Administration, or OSHA, saying Congress had not authorized the agency to act and describing its response as “a blunt instrument.”
The mandate “draws no distinctions based on industry or risk of exposure to Covid-19,” the majority opinion said, adding that it was “a significant encroachment into the lives — and health — of a vast number of employees.”
But the opinion said more tailored regulations may be lawful given that “most lifeguards and linemen face the same regulations as do medics and meatpackers.”
In a dissenting opinion, Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan expressed incredulity at the court’s willingness to frustrate “the federal government’s ability to counter the unparalleled threat that Covid-19 poses to our nation’s workers.”
Regulating safety in the workplace, the three dissenting justices wrote, is precisely what OSHA is commanded to do.
They agreed that the key issue in the case was that of institutional competence to address the health care crisis.
“Underlying everything else in this dispute,” they wrote, “is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19? An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”
The wiser course, they wrote, would have been to defer to OSHA.
“In the face of a still-raging pandemic, this court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” the dissenters wrote of the majority’s actions in the case, National Federation of Independent Business v. Department of Labor, No. 21A244. “As disease and death continue to mount, this court tells the agency that it cannot respond in the most effective way possible.”
OSHA issued the mandate in November, making exceptions for workers with religious objections and those who do not come into close contact with other people at their jobs. The administration estimated that it would cause 22 million people to get vaccinated and prevent 250,000 hospitalizations.
The ruling means that companies across the country must now decide between protecting employees, potentially losing staff members resistant to complying and running afoul of patchwork regulations.
Several major companies, like United Airlines and Tyson Foods, already have mandates, while others had held back and waited for legal battles to be resolved. Some companies have been anxious about losing employees at a time when workers are already scarce. While firms with mandates have said those worries largely have not come to fruition, a national requirement could have helped ease those concerns.
Walmart, Amazon and JPMorgan Chase, three of the largest employers in the United States, have yet to issue broad requirements for their workers. Some companies that have waited have cited concerns about the costs of setting up testing programs and pushback from unvaccinated employees.
That second mandate applies to workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs.
Federal judges in Missouri and Louisiana had blocked the requirement, which has exemptions for people with medical or religious objections, in rulings that applied in about half of the states. It will now go into effect nationwide.
In an unsigned opinion in the case, Biden v. Missouri, No. 21A240, the majority wrote that the health care mandate issued by the secretary of health and human services “falls within the authorities that Congress has conferred upon him.”
The governing statute gives the secretary the general power to issue regulations to ensure the “efficient administration” of the Medicare and Medicaid programs, and parts of the statute concerning various kinds of facilities generally also authorize the secretary to impose requirements to protect the health and safety of patients.
The majority wrote that the mandate “fits neatly within the language of the statute.”
The majority added that facilities that receive money from the Medicare and Medicaid programs must comply with many federal health and safety requirements.
“All this is perhaps why health care workers and public health organizations overwhelmingly support the secretary’s rule,” the majority wrote. “Indeed, their support suggests that a vaccination requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the secretary to impose.”
In dissent, Justice Clarence Thomas, joined by Justices Samuel A. Alito Jr., Neil M. Gorsuch and Amy Coney Barrett, wrote that “scattered provisions” in the statute did not justify the mandate.
Without “exceedingly clear” congressional authorization, Justice Thomas wrote, the federal government should not be allowed to force health care workers “to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months.”
“These cases are not about the efficacy or importance of Covid-19 vaccines,” he wrote. “They are only about whether” the agency “has the statutory authority to force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”
The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. The two cases decided on Thursday concerned a different question, that of whether Congress has authorized the executive branch to institute the requirements.
The majority opinion in the case on health care workers seemed to try to harmonize the two rulings.
“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it,” the opinion said. “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”
Emma Goldberg and Lauren Hirsch contributed reporting.
From The New York Times, January 14, 2022
What the Supreme Court’s Vaccine Case Was Really About
By: Linda Greenhouse
Halfway through his pained dissent from the Supreme Court’s decision blocking the Biden administration’s workplace Covid vaccine rule, Justice Stephen Breyer made a glancing reference to a now-obscure case from 1981, American Textile Manufacturers Institute v. Donovan. It was one of the court’s first efforts to interpret the 1970 law that created the Occupational Safety and Health Administration.
There surely was nothing casual about Justice Breyer’s citation to this case, once the stuff of headlines. He is the court’s authority on administrative law, a subject he taught for many years at Harvard Law School and that has never been more important, or contested, than it is today, as we see now in the court’s decision on the OSHA vaccine directive. At issue in the 1981 case was the validity of OSHA’s imposition of a new limit on textile workers’ exposure to cotton dust, a workplace hazard that causes serious lung disease. Upholding the rule, the court rejected the industry’s argument that OSHA was required to show that the benefits of any standard outweighed the costs.
The case has a fascinating back story. In the lower court, President Jimmy Carter’s administration had naturally defended its own rule. But when the Supreme Court heard argument in the case, it happened to be on the day after President Ronald Reagan’s first inauguration in January 1981. The new administration had not had time to vet all the government’s positions in pending cases, and a career lawyer in the solicitor general’s office argued in defense of the rule. Then things changed. In April, the newly staffed solicitor general’s office informed the justices that the administration was reconsidering the government’s position. It asked the court to remove the case from the docket, vacate the lower court opinion that had upheld the rule, and send the cost-benefit issue back to OSHA.
For the next two months, there was nothing from the justices but silence, not even an acknowledgment of the administration’s bold request. The court’s next word was its opinion, issued that June 17, upholding the cotton-dust standard and ruling that Congress had not placed a cost-benefit limitation on OSHA’s rule-making authority. Only in a footnote in his majority opinion did Justice William Brennan observe, almost slyly, that “we decline to adopt the suggestion” that the court should turn the case back to the new administration.
That case stands for a time when the Supreme Court was willing to rescue an administrative agency’s authority from the storms of politics. Was that Justice Breyer’s point in citing it? I don’t know, but what jumped off the page to me was the contrast between how the court behaved in 1981 and what happened last Thursday in National Federation of Independent Business v. Department of Labor, when six justices yielded to politics to disable an agency from carrying out its statutory mission to protect the health and safety of the American work force. That is where we are now. That’s how far the court has fallen.
The fact is that this dispute — which, remarkably, found 27 states aligned against the federal government — was never principally about the vaccine. OSHA’s “emergency temporary standard,” under which employers of 100 or more people were to require vaccination or weekly testing, was mainly a target of opportunity. It offered the conservative justices a chance to lay down a marker: that if there is a gap to fill in Congress’s typically broadly worded grant of authority to an administrative agency, it will be the Supreme Court that will fill it, and not the agency. “Placing constraints on the administrative state,” as Eugene Scalia, Justice Antonin Scalia’s son and secretary of labor during the last year of the Trump administration, observed in a Wall Street Journal op-ed in praise of the decision, is “a defining concern of the Roberts court.”
There is a rich irony to the political valence of this project. In the Chevron case in 1984, the court held that judges should defer to an administrative agency’s reasonable interpretation of an ambiguous statute. The decision was unanimous and at first made few waves, as its author, Justice John Paul Stevens, noted in his 2019 memoir, “The Making of a Justice.” But it was to become the most frequently cited opinion Justice Stevens wrote in his 34 years on the court.
Although the decision itself had no particular political spin, it became highly useful to conservatives during the second Reagan administration, when Democrats controlled both houses of Congress and Republicans were thrilled to be able to rely, without judicial interference, on the policymaking discretion of the executive branch agencies, still in Republican hands. They embraced such passages in Justice Stevens’s opinion as this one:
“Judges are not experts in the field, and are not part of either political branch of the government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”
But once Democrats gained back the White House, especially when Republicans controlled one or both houses of Congress, judicial deference to the executive branch lost its appeal among Republicans. Conservative judges and lawyers began to lobby for overturning Chevron. That has not happened formally, but it is hard to read the OSHA decision as anything but a functional overturning. The court’s unsigned opinion in the OSHA case flips that presumption on its head: Because Congress, 52 years ago, had not explicitly empowered OSHA to take the action it took in the face of a public health crisis of historic dimension, the agency was acting outside the boundary of its statutory authority.
Of the six justices in the majority, three pressed the point even further. In a concurring opinion, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote that OSHA had failed to meet the test of something called the “major questions doctrine.” (Justice Gorsuch asserted that the majority as a whole “rightly applies the major questions doctrine,” a baffling claim because the phrase doesn’t appear in the opinion that speaks for all six; the remaining three were Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.)
The major questions doctrine is a recent invention of conservative judges that purports to require explicit congressional authorization for an agency action that resolves “a question of vast national significance,” in Justice Gorsuch’s words. Its obscure origins are frequently ascribed to the court’s decision in 2000 holding that the Food and Drug Administration lacked authority to regulate tobacco products.
True, in that case, Food and Drug Administration v. Brown & Williamson Tobacco Corporation, the court found that the federal Food, Drug and Cosmetic Act did not give the agency the power it was seeking to exercise. And the decision contained the “vast national significance” language that Justice Gorsuch quoted. But it is almost impossible to read the decision as giving birth to a new doctrine of administrative agency disempowerment. For one thing, as the court emphasized, until the case arose in 1995, the F.D.A. had spent decades disavowing authority to regulate tobacco. And Congress had repeatedly refused to give the agency that power. It did not take a new doctrine, under whatever label, for the court to conclude that Congress had to be the one to change the status quo.
In his OSHA opinion, Justice Gorsuch cited a more recent case as endorsing a major questions doctrine. That was the court’s decision in August blocking a Covid-related national eviction moratorium issued by the Centers for Disease Control and Prevention. The court said that “it strains credulity” to believe that the Public Health Service Act, on which the C.D.C. relied, authorized the agency to take such action. Whatever the merits of that conclusion, the eviction moratorium was certainly a reach, and it strains my credulity to find it in any way analogous to OSHA’s effort to protect workers’ safety and health through the vaccine rule that, as Justice Breyer wrote in his dissenting opinion, “lies at the core of OSHA’s authority.”
The decision blocking the OSHA rule, along with a companion decision in which the court refused, by a vote of 5 to 4, to block a vaccine mandate for workers in the health care industry, are not final judgments. The cases now return to their respective courts of appeals for further review. They may return to the Supreme Court, although given that an emergency OSHA rule can last no more than six months (a limiting factor that the OSHA decision obscures), they well may not. But in any event, it’s certain that we have not heard the last of the major questions doctrine or the war on the administrative state.
That Justice Gorsuch, with his penchant for folksy aphorisms, has become the show horse of the court’s far right shouldn’t deflect attention from his less showy but equally determined partner in the campaign to bring down the administrative state, Justice Alito.
Among the more head-snapping moments during the nearly four hours of argument in the two vaccine cases on Jan. 7 came with Justice Alito’s comments in the OSHA argument to Solicitor General Elizabeth Prelogar.
Justice Alito suggested that the vaccine policy was more onerous than other OSHA health measures because employees who accept the vaccine run some personal risk, presumably of a bad reaction. The justice, who like the eight others has received two vaccine doses plus a booster, wanted to have it both ways: to cast a cloud over the vaccine requirement while not being labeled an antivaxxer. “I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe,” he told the solicitor general. Then what was he saying, exactly?
“I don’t want to be misunderstood,” Justice Alito repeated, adding: “I’m sure I will be misunderstood.”
This was Sam Alito as victim, the Alito we have seen in recent public outings, such as his appearance in September at the University of Notre Dame, where he accused critics of the court’s so-called “shadow docket” of portraying the court “as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way.” He complained about what he said were “unprecedented efforts to intimidate the court or damage it as an independent institution.”
In his opinion dissenting from the court’s decision to permit the vaccine mandate for health care workers, Justice Alito objected that workers were being put “to the choice of their jobs or an irreversible medical treatment.” That was a strange way to characterize a vaccine that demonstrably loses its effectiveness over a period of a few months.
As he put it during the OSHA argument, “I’m sure I will be misunderstood.”
Not to worry, your honor. We understand you perfectly.
From The New York Times, January 17, 2022