When the Supreme Court rejected the Occupational Safety and Health Administration’s testing mandate for U.S. companies with 100 or more employees last Thursday, President Biden, his allies, and most media observers received this outcome as an irremediable disaster, “handcuffing” him from making good on his pledge to mandate Covid-safe workplaces for up to 100 million Americans, and “completing the radical right’s takeover of the Supreme Court.” These apocalyptic reactions were overwrought. If not corrected, such misperceptions could prevent liberals in and out of government from both gauging the very real challenges posed by this right-shifted Supreme Court and adopting smart strategies to meet those challenges.
OSHA’s rule was shot down by all six of the court’s bloc of “conservative” justices in a decision that flouted the plain text of the Occupational Safety and Health, or OSH, Act. Such anti-regulatory activism would have been unimaginable only a few years ago and stretching back at least till the late 1930s. But here the conservative bloc split: Chief Justice John Roberts, along with Justices Brett Kavanaugh and Amy Coney Barrett joined on a per curiam opinion signed by no individual justice, and Justice Neil Gorsuch writing a separate and significantly different “concurring” opinion for himself and Justices Clarence Thomas and Samuel Alito.
The two opinions reveal a gap potentially deep and consequential, both in terms of a short-term opportunity for the Biden administration to adopt robust new workplace vaccination requirements and in their long-term constitutional implications. These differences appear especially sharp against the backdrop of the recent drumbeat among conservative legal luminaries, including Supreme Court justices, for exhuming a long-defunct, radically anti-regulatory constitutional concept, the so-called “nondelegation” doctrine. In its most extreme formulation, spelled out by Justice Gorsuch in his 2019 dissenting opinion in Gundy v. United States, nondelegation would bar Congress from enacting statutory provisions broad enough to delegate to executive agencies authority to make any decisions that involve “policymaking.” That formulation would, as acidly observed by liberal Justice Elena Kagan’s majority opinion in that case, make “most of government unconstitutional.”
In last week’s case, the Roberts-Kavanaugh-Barrett opinion did not question the constitutional validity of the OSH Act’s broad grant of authority for OSHA to enact emergency regulations to combat “grave [workplace] danger” and “new hazards.” Moreover, the court’s opinion indicated that OSHA could constitutionally implement that authority with regulatory approaches more precisely targeted than the vaccination rule at issue.
In contrast, Justice Gorsuch and his two allies wrote that the administration’s interpretation—a straightforward, literal interpretation of the statutory text—would “likely” render the law an unconstitutionally broad delegation of legislative authority. This theory would appear to nix not only OSHA’s authority to impose any sort of vaccination requirement for any class of workplace, but any provision in any statute that empowers an executive agency to address future circumstances not specifically spelled out or foreseeable by the Congress that drafted the law. If, indeed, these two opinions do expose a rift this profound, it is possible to view the decision as a partial, though meaningful, 6–3 liberal victory—turning down a clear opportunity to embrace Gorsuch’s cataclysmic vision to actually dismantle, as distinguished from more tightly constrain, the modern “administrative state.”
To decipher these tea leaves, it is best to parse in some detail the differences between the two conservative opinions. The Roberts-Kavanaugh-Barrett opinion never invoked, nor even mentioned, the Constitution. They cast their conclusion that OSHA’s rule, covering 84 million employees, exceeded its authority purely as a matter of statutory interpretation. To do this, the trio argued that the overall context of the OSH Act required narrowing the reach of the statutory term “grave danger” to “workplace-related” or “occupational” danger and that “the risk of contracting COVID-19 [is] not such a danger.” They outlined their reasoning like so:
Although COVID-19 is a risk that occurs in many workplaces it is not an occupational [emphasis in original] hazard in most [emphasis added] ... no different from the day-to-day dangers that all face ... from any number of communicable diseases.… OSHA’s indiscriminate approach [emphasis added] ... takes on the character of a general public health measure, rather than an occupational safety or health standard.
The trio’s claim that (their version of) the context and purpose of the act should trump the ordinary meaning of a key statutory term, standing alone, is a stretch—though not wholly implausible (and reminiscent of arguments the chief justice has made on other occasions to achieve liberal results). More important, the court’s statement that workplace-occurring communicable disease is not an occupational hazard in “most” workplaces means that in some workplaces, it is such a hazard, and OSHA can therefore protect exposed workers in them.
Evidently to ensure that no one misses the upshot of this second observation, the opinion goes on to say:
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.
It appears likely that this paragraph was intended to express Justice Barrett’s insistence during the oral argument, questioning an attorney opposing the rule, that
the vaccine-or-test requirement … is necessary to address a grave danger in the workplace. I think you would be hard pressed to contest the Chief’s point that there are some workplaces in which the danger to employees is different than that that they face out in the world. A meat-packing plant or a healthcare—the dentist [emphasis added].… You’re not disputing what Justice Kagan said, that, you know, this is a grave danger and that in some circumstances this rule might be necessary, but just the scope of it makes it different?
(Perhaps with some reluctance, the lawyer acknowledged agreement.)
Thus the language in the opinion would seem to countenance a new OSHA vaccine-or-test-and-mask emergency rule targeted to particular workplace-specific risks. Presumably, that tack could wind up covering a significant chunk of the nation’s workers. Indeed, the day after the decision, President Obama’s OSHA Administrator David Michaels recommended just such a revamp, to “ensure it fits the Court’s suggestion that it be risk-based” but “cover all workers in higher risk jobs, not only those employed by large employers”—in that respect actually reaching more broadly than the existing standard spurned by the court.
Had all six conservative justices joined Justice Gorsuch’s concurrence, former Administrator Michaels could never have written those encouraging words. Gorsuch made no mention of OSHA’s retaining authority to adopt a more targeted version of its emergency rule. Far from endorsing the Roberts-Kavanaugh-Barrett affirmation of the constitutional validity of the OSH Act’s broad grant of emergency power to address “grave dangers” and “new hazards,” Gorsuch’s opinion all but condemned that statutory language as a “likely … unconstitutional delegation of legislative power.”
Indeed, Gorsuch’s principal aim in writing the opinion appears to have been to conflate constitution-based nondelegation (that is to say, his administrative state wrecking-ball version) with the per curiam opinion’s reference to an infrequently used maxim requiring statutory clarity when agencies push statutory envelopes to address “major questions” outside their usual bailiwick. In contrast, nondelegation would invoke the Constitution to prevent agencies—with no recourse to Congress—from executing broad statutory mandates, including and especially provisions to address technological innovation or other changed circumstances that Congress did not and could not pinpoint when the law in question was passed.
Were this concept to command a majority of the court, untold laws and regulatory regimes, on which major industries and constituencies depend, would be stripped of long-standing authority or paralyzed by litigation challenges. To take only a few examples, prime targets would include environmental laws administered by the Environmental Protection Agency since 1970; radio and television regulations prescribed by the Federal Communications Commission since 1934; food and drug protections administered by Food and Drug Administration since 1906 and 1938; consumer protection laws and antitrust laws administered by the Federal Trade Commission and the Justice Department since 1890 and 1914; anti-discrimination laws administered by the entire federal government; and the uniquely powerful instruments of fiscal policy and financial regulation administered by the Federal Reserve and numerous other financial regulatory agencies, beginning with the 1913 Federal Reserve Act and extending to Sarbanes-Oxley and Dodd-Frank in the twenty-first century.
Recently, this mind-boggling prospect could not be dismissed as a bizarre fantasy. Gorsuch’s 2019 dissenting opinion in Gundy, elaborating his extreme concept of nondelegation, was joined by two colleagues, Justice Thomas and Chief Justice Roberts. Justice Alito concurred in the judgment to uphold the law at issue in that case but separately wrote that he could explore reinvigorating nondelegation in a future case. And five months later, Justice Kavanaugh wrote an even more unusual opinion in Paul v. United States, stating that he would be open to considering Justice Gorsuch’s “thoughtful” elaboration of a beefed-up nondelegation doctrine.
With that in mind, the challengers to OSHA’s rule can hardly be blamed for inviting the court to take the opportunity to embrace a muscular version of nondelegation. Nevertheless, their invitation was turned down. And the manner of the court’s rejection gives some confidence that, having sighted the can of worms that Gorsuch’s gambit would open up, three conservative justices lost any appetite for going there. That seems to be a plausible takeaway from their refusal so much as to acknowledge any possible constitutional objection to the OSH Act emergency provision, especially given their nod toward a more targeted application of the statute.
To be sure, the conservative justices who control this court, all six of them, remain skeptical, some downright hostile, to the federal regulatory regime established by the early twentieth-century Progressives and built out through the twentieth and twenty-first centuries. In this instance at least, three of those conservative justices were not as reflexively hostile as had—understandably—been widely feared before the decision came down.
What lessons does this episode yield for coping with this court, for the Biden administration, liberal leaders, and all who recognize the need for a national government constitutionally equipped to address twenty-first-century national problems? In the short term, take yes for an answer and take due advantage. That means: re-up the OSHA rule, embracing Roberts’s and Barrett’s call for a targeted, risk-based approach. And move on to tout the court’s recognition that the Constitution accommodates the need for a national government capable of addressing global pandemics and, presumably, other major threats to the nation’s welfare—reflected in both the OSHA decision and the court’s simultaneous affirmation of the government’s power to require hospitals and other health providers receiving Medicare or Medicaid funds to ensure that their workers are vaccinated.
In the longer term, liberals in the administration and Congress need to recognize the judiciary as a coequal branch of government, not only in principle but as a political force to be reckoned with—albeit one with unique characteristics. This means that when officials at either end of Pennsylvania Avenue develop policy proposals or political strategies, they cannot treat the courts, the Supreme Court in particular, as an afterthought by assuming the Justice Department will ride to the rescue when they get sued.
White House and other executive officials, and especially members of Congress, have an uneven record on this score. Surprising as it may seem, they have not consistently hired or listened to savvy experts, to build in capacity to avoid devastating surprises in court. From the get go, they need to forecast the likely legal hurdles to expect from this cohort of activist conservatives and integrate those into their planning. The era of deferential judicial restraint, which legislators and policymakers long took for granted, is over. They need to listen to what judges, and especially justices, write and say—the music as well as the words—just as they do with allies and adversaries in the elected branches.
Finally, recognizing the judiciary as a political coequal means bringing law into politics—persuasively. That includes incorporating informed constitutional and legal priorities, points, and appeals into policy and political messaging strategies. As I and others have written, this is a weapon conservatives and Republicans deploy much more frequently and effectively than liberals and Democrats.
Specifically, despite last week’s apparent reprieve from a radical nondelegation assault on “the administrative state,” liberals and Democrats—and commonsense conservatives and Republicans—need to be spotlighting that threat (which the court remains, in principle, free to revive): both its devastating real-world consequences and its threadbare constitutional credentials.
As noted earlier, the prime targets of nondelegation radicals like Justice Gorsuch are statutes, like the OSH Act emergency standard, authorizing agencies to quell unforeseen “grave dangers” and “new hazards.” That would subvert many, perhaps most, important health, safety, environmental, and financial regulatory laws and programs. Liberals need to explain, early and often, how such future-oriented protections work and why they are essential for everyday Americans. And they need to drive home that, contrary to the insistence of purported “originalists” on the right, the “original” Framers endowed the national government with strong and flexible authority to regulate the economy, precisely (among other reasons) to handle unanticipated problems, such as the Covid-19 threat to workers’ health and safety.
How do we know this? We don’t have to guess. In words as iconic as any the Supreme Court has ever proclaimed, Chief Justice John Marshall, himself a Framer, wrote, in 1819:
This [is] a Constitution intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs … to provide … for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur. To have declared that the best means shall not be used … would have been to deprive the legislature of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to circumstances. [emphasis added]
Marshall was not merely expressing his personal opinion. His elaboration of Congress’s broad authority to choose the “best means” to address a problem tracked Treasury Secretary Alexander Hamilton’s 1791 memorandum to President George Washington, supporting the constitutionality of the first Bank of the United States. The First Founder accepted that view and signed into law the legislation creating the bank. These are ideas with proven durability. Liberals and Democrats would do well to take the opening they’ve been given, drape themselves in the Founders and the Constitution, and cast themselves as the guardians of principles that should be allowed to endure.
