If It Pleases the Court

Analysis of the Supreme Court Case that rejected OSHA's vaccine mandate

On January 13, 2022, the Supreme Court of the United States issued a decision in the National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration case, in which the court struck down the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine requirement for 84 million Americans employed at businesses with 100 or more employees.

Here’s a breakdown of each opinion the Supreme Court issued in this case:

The Dissenting Opinion

Justice Breyer, Justice Sotomayor, and Justice Kagan dissented and supported OSHA’s vaccine mandate for three main reasons: COVID-19 presents a severe threat that justifies OSHA’s emergency temporary standard, OSHA’s edict is not a mandate because there is a testing and masking option and allowance for religious exemptions, and the Supreme Court is not comprised of scientists so it must defer to those who are.

On the first point, the dissenting justices argued that OSHA’s vaccine requirement for workers is well within the “agency’s mission to ‘protect employees from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.” In order to prove that COVID-19 poses a “grave danger,” the dissenting opinion begins with the claim that COVID-19 has “killed almost 1 million Americans and hospitalized almost 4 million.”

And while each of these deaths is a tragedy (something I know personally after my dad died from COVID-19 last August), how many of these deaths are the result of a workplace transmission of the virus? The death rate for COVID-19 is highest among the elderly, a retired population that is most at risk that would not be subject to OSHA’s edicts. Furthermore, one of the most common places people contract COVID-19 is at home, a fact to which I can personally attest. So, if we rely on OSHA’s threat assessment standards, everyone working at home better do so in a hazmat suit until they’re off the clock.

The only way the dissenting justices connect the contraction and spread of COVID-19 with the workplace is that the virus spreads in “confined indoor spaces,” and since that describes most places of work, the workplace must be a petri dish playground for the virus. I for one would like actual data instead of conjecture to back up that claim.

This isn’t to say that some people have contracted COVID-19 at work, and I sympathize with all of them. And if workers with comorbidities that make them more susceptible to a severe case of COVID-19, I believe that employers should make all reasonable accommodations to ensure the health of those workers. My point is that the logic the dissent uses to connect the spread of the virus in the workplace is lacking at best, which undermines its position that OSHA’s edict is appropriate.

On the second point, if OSHA’s emergency temporary standard is not a mandate, why is the Biden Administrationcontinuing to push this order among others to require (synonym for mandate, by the way) the vaccination of more Americans? Even so, as the majority opinion pointed out, employers are not required to let their employees opt out of the vaccine and undergo weekly testing and masking at work. This OSHA order states that any state laws contrary to the federal order are null and void, which would include state law requiring employers to provide the test and mask alternative to the vaccine. I would also contend that placing the cost of weekly testing on employees could be considered an undue burden for those just scraping by. And what happens during periods of COVID-19 test shortages?

Finally, it’s true that the Supreme Court is not comprised of scientists, but it should be comprised of constitutional scholars. The issue at hand in this case not whether or not Americans should be compelled to have the COVID-19 vaccine, but rather if an unelected agency can tie American citizens’ ability to be employed to their compliance with the agency’s health policies that should be made by a patient and his/her doctor. That seems to be a series of constitutional issues on the power of bureaucratic agencies, the use of emergency powers, and the rights to medical privacy and bodily autonomy. A person is a black robe, not a white lab coat, should be able to weigh in on those matters.

The Majority Opinion

Chief Justice Roberts, Justice Kavanaugh, and Justice Coney Barrett signed on to the majority decision, which argued that OSHA’s vaccine mandate is illegitimate because it exceeds the authority of the agency.

The majority rightfully argued that there is a vital difference between regulating hazards contained to the workplace and requiring medical interventions for employees that extend beyond the workplace. One cannot be vaccinated while on the clock and then unvaccinated off the clock.

According to the majority, “The (vaccine) regulation otherwise operates as a blunt instrument. It draws no distinctions based on industry or risk of exposure to COVID-19.” Clearly, not all workplaces pose an equal threat to their employees contracting COVID-19, and many workers are just as likely, possibly more so, to contract COVID-19 when away from the workplace.

It’s kind of like human stupidity. Sure, many of us have or do work with stupid people, but human stupidity is not confined to the workplace. Just go to the grocery store, local coffee shop, or mall, and it’s not hard to see stupidity on display. And if we’re being honest, we all take turns being the office idiot and public fool from time to time.

As such, OSHA’s vaccine mandate is not a response to a universal “occupational hazard,” but rather a general public health threat, which falls out of OSHA’s purview according to the act of Congress that created the agency in 1970. And since Congress has neither granted the authority to manage the general public health to OSHA, nor has Congress passed its own vaccine mandate when it had the opportunity to do so, the order is invalid.

I’d say the majority opinion is reasonable, but it’s a softball compared to the constitutional fastball the concurring opinion threw at OSHA.

The Concurring Opinion

Concurring opinions are those that agree with the outcome of the majority opinion but have different legal reasons for doing so. Although concurring opinions aren’t usually the star of the courtroom show, the concurring opinion is in this case. Written by Justice Gorsuch and joined by Justice Thomas and Justice Alito, the concurring opinion is far superior to the majority opinion in several ways.

Gorsuch’s concurring opinion begins by citing the 10th Amendment, in recognition that local and state governments, not just the federal government have the power “to regulate the public health,” and have done so throughout the COVID-19 pandemic. He then explains that according to the separation of powers doctrine, the power of the American government is divided both vertically (local, state, and federal), but also horizontally, among the legislative, executive, and judicial branches. If this sounds familiar, it’s because Federalist #51 makes the same point as to why the American system of federalism is designed for “ambition to counteract ambition.”

After laying out this constitutional basis for his argument, Gorsuch goes on to invoke the major questions doctrine, which requires “Congress to speak clearly” when granting an executive agency authority over matters “of vast economic and political significance.” Like the majority opinion, Gorsuch concludes that “OSHA’s mandate fails that doctrine’s test” since “… Congress has nowhere clearly assigned so much power to OSHA.” Furthermore, Congress has failed to pass a vaccine mandate of its own despite several COVID-19 related bills that have been signed into law.

But he doesn’t stop there. The concurring opinion eloquently argues that even if Congress had delegated its legislative authority to OSHA or any other executive agency to mandate COVID-19 vaccines, it would have also been unconstitutional. Gorsuch bases this on the nondelegation doctrine, which he says “ensures democratic accountability by preventing Congress from delegating its legislative powers to unelected officials.”

In other words, the U.S. Constitution has granted legislative powers to Congress, the branch of government elected by and accountable to the people. If Congress were allowed to give some of this power away to unelected (and therefore, democratically unaccountable) bureaucracies, it would undermine the integrity of our constitutional democratic republic.

He concludes with, “But if this Court were to abide them (‘the law’s demands’) only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seek to preserve would amount to little.”

Gorsuch nailed it. 

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