Flexing its judicial muscle as the Supreme Court has not done in generations, the Court’s new conservative majority of six Justices on Thursday blocked the Biden Administration policy that sought to impose nationwide protection of more than 84 million workers from the deadly Covid-19 virus.
The ruling was far broader than anything the conservative majority has done so far in any prior orders limiting government anti-pandemic regulations.
The ruling was profoundly important for what it meant to federal government handling of the pandemic, probably forcing President Biden and his aides to come up with narrower, perhaps industry-by-industry measures to prevent further spread of the virus in the workplace. The measures, adopted as emergency orders, were apply to all companies with 100 or more workers and require them either to arrange vaccinations for nearly all their workers, or test them weekly for the virus and require masking and social distancing at work.
But the 6-to-3 decision was equally important to basic understandings about the Constitution, because it brought the first strong hint that this new majority may be ready to revive a power not used since 1935 to nullify broad action by federal government agencies.
The unsigned, nine-page ruling was not a final decision against the vaccinate-or-get-tested policy adopted in November by the Occupational Safety and Health Administration; it only blocked enforcement, for now. However, it did amount to a fully considered prediction that if the Administration tries to continue defending the policy, it ultimately would be doomed.
All six Justices in the majority supported the conclusion that the OSHA directive would fail because it far exceeded the powers that Congress had given that agency to regulate safety in the nation’s workplaces, even in an emergency.
The core of the ruling was summed up this way: “We expect Congress to speak clearly when authorizing an agency to exercise vast economic and political significance….It has not given that agency [OSHA] the power to regulate public heath more broadly” than to deal with hazards specific to each workplace.
Those comments come against a wider background, the temptation — openly expressed by some of the new Court majority — to bring back some version of the idea (traceable all the way back to 1825) that Congress cannot constitutionally delegate its law-making powers to administrative agencies of the Executive Branch.
That clearly was what three of the Justices had in mind when, in a separate seven-page opinion, they justified their votes by specifically relying upon the famous decision from 86 years ago in what history knows as the “sick chicken case.” It was called that because it nullified the wide-ranging National Industrial Recovery Act which regulated, among other industries, the poultry plants. The NIRA was the broadest anti-Depression initiative of President Franklin Roosevelt’s New Deal.
That separate opinion went on to quote from the 1825 decision by Chief Justice John Marshall (in Wayman v. Southard), saying that there are “important subjects which must be regulated by the legislature itself,” leaving only “the details” to Executive agencies. The separate opinion then added: “And on no one’s account does this [OSHA] mandate qualify as some ‘detail.’ “
That separate opinion was written by Justice Neil M. Gorsuch, who in a little more than four hears on the Court, already has become known as a champion of those doctrines for restraining federal agencies’ powers. He was joined by Justices Samuel A. Alito, Jr., and Clarence Thomas, well known as the Court’s two most conservative members.
While the other three Justices in the majority wrote nothing to express separate views, they did sign on to the controlling opinion that repeatedly denounced the OSHA directive as something that far exceeded anything that Congress had allowed when it created that agency in 1970, a half-century ago. (The others in the majority were Chief Justice John G. Roberts, Jr., and Justices Amy Coney Barrett and Brett M. Kavanaugh.)
OSHA’s authorized mission, the majority declared, is only to regulate workplace health and safety in response to “occupational” hazards or “work-related dangers,” not public health hazards that exist across the nation, well beyond the factories, stores and offices which is the commercial realm usually monitored by OSHA.
Three Justices, dissenting in an opinion written by Justice Stephen G. Breyer, stressed the dangers of the coronavirus spreading in “confined indoor spaces,” causing harm “in nearly all workplace environments….In those environments, more than any others, individuals have little control and therefore little capacity to mitigate risk…..The proof is all around us.” Breyer was joined by Justices Elena Kagan and Sonia Sotomayor. Those three make up the Court’s remaining libersal bloc.
The Court’s actions Thursday were not all setbacks for the Biden Administration’s broad efforts to head off further health hazards from Covid-19. In a separate, 10-page and also unsigned majority opinion, the Court refused by a 5-to-4 vote to block a separate vaccination requirement program that covers about 10 million workers in hospitals, clinics, other health centers and nursing homes.
That program, already in effect, requires staff vaccinations at any facilities that receive federal funds from the Medicare or Medicaid programs, which provide health care benefits for the aged, the disabled and the poor.
The majority found clear wording in federal laws governing those programs to justify the vaccination policies for health care workers, equivalent to their normal obligation to deal with sanitation and disinfectants in those facilities.
The liberal Justices Breyer, Kagan and Sotomayor were joined in that majority by the Chief Justice and by Justice Kavanaugh. The Justices who joined the separate opinion in the OSHA case – Alito, Gorsuch and Thomas – dissented in the health care case. They were joined by Justice Barrett. They would have blocked the vaccination policy at issue in this separate program.
In both cases, the Court’s orders were “interim,” only determining whether the Biden initiatives could or could not continue while lower federal courts continue reviewing the basic question of whether those orders were, in fact, valid or valid.
It seems likely that the Biden Administration, seeing the grim outlook for the OSHA program’s validity, may drop its defense and seek other measures. The challenges by businesses, commercial organizations and 27 states to the health care facilities vaccination program are likely to continue in the lower courts, although lower courts would be strongly challenged to find a way to disagree with the five-Justice majority that allowed that program to go on, uninterrupted.
The Court considered the two anti-virus programs on a highly expedited basis, reaching both decisions less than a week after holding a hearing on them. It seldom acts with such dispatch on a major dispute with such far reaching consequences.