Monday, January 24, 2022

A “Broad Animus” toward Government

Last week the Supreme Court ruled, along strictly ideological lines, that the federal government — acting through the Occupational Safety and Health Act (OSHA) — cannot impose Covid vaccine mandates upon large employers.  The Court was wrong.  Federal law explicitly gives OSHA the power to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards."  In its bizarre ruling, however, the six conservative justices reasoned that since workers could contract COVID outside of the workplace, OSHA did not have the authority to create a mandate.

If that reasoning doesn’t make much sense to you, you’re not alone.  The three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) seemed stunned by their colleagues’ logic, too.  They wrote

Contra the majority, [the law] 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.” … The statute does not require that employees are exposed to those dangers only while on the workplace clock.  And that should settle the matter.

But that didn't settle the matter, and the government is now constitutionally prohibited from mandating vaccinations for employees of large companies.

In what at first might have seemed more reassuring, two of the conservative justices, John Roberts and Brett Kavanaugh joined the three liberals in allowing the government to mandate that health care workers in hospitals and other facilities receiving Medicare money be vaccinated.

But that leaves four of the justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett) who would actually have forbidden health care facilities — overwhelmed by an infection that has killed over 850,000 Americans — from requiring vaccinations for their workers.

Paul Waldman writes:

The truth is that the conservatives on the court have a broad animus toward the government’s power to regulate at all, which is playing out in multiple cases.

Some observers have warned that we’re headed for a new Lochner era, referring to the period in the early 20th century when the court struck down laws concerning everything from child labor to minimum wages to monopolistic business practices, on the grounds that government had no right to interfere in the smooth operation of commerce and private contracts, even if it meant children toiling in dangerous factories.
In a little-noticed concurrence to the OSHA mandate decision, Gorsuch, Thomas and Alito made this broad animus explicit.  (The following argument gets a little hairy, so stick with me here.)

  • In limiting the power Congress has to create government administrative agencies like OSHA, earlier Supreme Court decisions have insisted that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested,” adding that it must articulate an “intelligible principle” to limit the agency’s actions.
  • Noah Feldman explains that:
    For more than three-quarters of a century, the justices have interpreted their own words generously, to maximize the powers that Congress is allowed to give to the agencies that regulate the air we breathe, the water we drink and the safety of our workplaces, among many other functions.  The court has treated almost any words used by Congress as satisfying the intelligible-principle requirement.  And the justices have allowed Congress to delegate enormous lawmaking powers without saying that the delegation counted as an impermissible transfer of essential legislative functions.
  • The three radical right-wing justices, however, apparently want none of it and would severely limit the authority of Congress to delegate such power to administrative agencies.  In other words, they believe Congress has no right to allow OSHA to decide whether the Covid virus is a “physically harmful substance” or whether the vaccine mandate is “necessary.”  Rather, if the government wants to mandate masks for health workers, these justices contend, Congress itself would have to do the research, make the decisions, and write separate laws determining that COVID is physically harmful and that the mandate is necessary.  

If Gorsuch, Alito and Thomas had their way, myriad other agencies would be similarly hamstrung: 

  • The Federal Drug Administration presumably would not be allowed to prohibit the sale of an unsafe drug without specific congressional findings and action. 
  • The National Highway Traffic Safety Administration presumably could not regulate the design and safety of child restraints without specific congressional findings and action. 
  • The Federal Aviation Administration presumably could not regulate the length of pilot shifts without specific congressional findings and action.

Americans depend upon the government to regulate public life in a broad variety of areas: public health, corporate behavior, transportation, employer/employee relationships, child protection and so on.  It’s disturbing enough that six members of the court won't allow the government to mandate masks for large employers; it's beyond disturbing that three members would not allow the government to mandate much of anything.

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