The U.S. Supreme Court has just delivered a strong reminder to President Joe Biden and his administration’s bureaucrats that the president of the United States is not a monarch. The Constitution’s system of separation of powers and checks and balances denies Biden, or any other U.S. president for that matter, unbridled power to issue executive edicts in place of laws passed by the duly elected legislative branch.
Biden and his Chief of Staff Ron Klain ignored fundamental constitutional principles when they used an executive agency to devise a workaround in response to the lack of any COVID-19 vaccine-or-test mandate law from the legislative branch. The executive branch workaround would impose such a broad mandate on private employers with 100 or more employees. The Supreme Court responded forcefully to the Biden administration’s power grab. It came in the form of the Court’s historic 6-3 decision, announced on January 13th, blocking the Biden administration’s unilateral vaccine-or-test mandate.
Biden used the Occupational Safety and Health Administration (“OSHA”) to issue the emergency mandate order. OSHA was in the process of implementing and enforcing its order until it was stopped by the Supreme Court. The majority ruled that OSHA lacked the required congressional authority to issue such a sweeping mandate, especially one with so profound an effect on the American economy and on the daily lives of many millions of Americans.
On the same day as it blocked OSHA’s emergency order from going into effect, the Supreme Court muddied the waters with another decision involving a different Biden administration vaccine mandate. By a narrower 5-4 majority than the OSHA decision, the Court upheld a Department of Human and Health Services (HHS) vaccine mandate for healthcare workers at healthcare facilities receiving federal government funding through Medicare or Medicaid. Chief Justice John Roberts and Justice Brett Kavanaugh voted to keep the latter mandate in place, while they had voted to block the OSHA mandate.
Despite the split in the outcomes of the Supreme Court’s two Biden administration COVID-19 mandate decisions, its OSHA mandate ruling is of far more significance. The OSHA mandate ruling affects millions more Americans and much broader sectors of the economy.
More fundamentally, the OSHA ruling blocking OSHA’s vaccine-or-test mandate sets much-needed parameters under the Constitution’s system of separation of powers and checks and balances around the discretion of the expansive administrative state. The Supreme Court’s approval of the HHS vaccine mandate in its separate decision does not damage the guardrails it set in the OSHA decision.
It’s one thing for the Supreme Court to uphold the legislative authority of HHS, the nation’s principal public health executive branch department, within the bounded context of setting health-related conditions for workers at healthcare facilities receiving federal funds. It’s quite another to infer virtually unbounded legislative authority from a 50-year-old labor workplace statute to justify a Labor Department agency’s imposition of a broad public health mandate.
“Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided,” the majority stated in the OSHA mandate opinion. The law that created OSHA “empowers the Secretary to set workplace safety standards, not broad public health measures.”
OSHA’s bureaucrats strayed way outside of their area of expertise and congressionally defined mission to regulate occupational-specific hazards. “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the Supreme Court majority opinion concluded.
When it comes to separation of powers, Justice Neil Gorsuch wrote in his incisive concurring opinion, “this Court has established at least one firm rule: ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’ We sometimes call this the major questions doctrine. OSHA’s mandate fails that doctrine’s test.”
Justice Gorsuch added:
“The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA.”
The three dissenting leftist Supreme Court justices quoted out of context from the Emergency Temporary Standard (“ETS”) provision of the OSHA statute in a vain attempt to justify OSHA’s emergency vaccine-or-test mandate. They cited, for example, words in the provision such as “grave danger,” “substances,” “agents,” “physically harmful,” and “new hazards.” Then they tried to impersonate textualists.
In their dissenting opinion, Justices Sonia Sotomayor, Stephen Breyer, and Elena Kagan argued that the coronavirus is a “new hazard” as well as a “physically harmful agent.” They referred for semantic support to Merriam Webster’s Collegiate Dictionary definitions of “hazard” as a “source of danger” and “agent” as a “chemically, physically, or biologically active principle.” To top it off, the dissenters cited the dictionary definition of “virus” as “the causative agent of an infectious disease.” The ETS met the “necessary” standard of the provision, according to the three leftist dissenters, because “OSHA showed that no lesser policy would prevent as much death and injury from COVID-19” as the ETS would.
The leftist justices thought they had made a compelling case in defense of OSHA’s congressional authority to issue its COVID-19 vaccine-or-test ETS mandate. But they did not come even close to succeeding.
First, what Congress actually has and has not done undermines the leftist dissenters’ arguments that OSHA has adequate congressional authority for its emergency action. As Justice Gorsuch pointed out in his concurring opinion, Congress has been explicit when it has stipulated a requirement for proof of vaccination against vaccine-preventable diseases. Congress did so, for example, when it required such proof from immigrants seeking legal status to receive visas or be admitted to the country. Not surprisingly, the Biden administration has violated this immigration statutory provision as well, allowing many thousands of illegal immigrants to stay in the United States without requiring a COVID-19 vaccination.
Notably, the word “infectious” itself is mentioned just once in the annotated version of the “Occupational Safety and Health Act of 1970,” as amended, that appears on OSHA’s own website. The Director of the National Institute for Occupational Safety and Health is required “to conduct a study to evaluate the potential for, the prevalence of, and the issues related to the contamination of workers’ homes with hazardous chemicals and substances, including infectious agents, transported from the workplaces of such workers. (29 USC Section 671, emphasis added).
Congress was worried about workers bringing “infectious agents” from the workplace into their homes, not the other way around.
Congress has passed sweeping legislation during the last two years directed to combating COVID-19. However, Congress did not use those opportunities to expressly confirm OSHA’s authority to take the unprecedented step of issuing and enforcing a broad emergency vaccine-or-test mandate that impinges on workers’ lives outside of the workplace.
In fact, on December 8, 2021, the Senate did just the opposite. It passed a joint resolution of disapproval of the COVID-19 vaccine-or-test ETS mandate, under the provisions of the Congressional Review Act. The House of Representatives has not acted on this joint resolution but has not passed its own resolution approving the ETS either. Thus, the only expression of congressional sentiment on what OSHA did is a negative one.
The leftist justices’ assertion that OSHA responded to COVID-19’s threat to workers in workplaces across the country in the way Congress would have intended when it passed the OSHA statute 50 years ago is patently false.
Second, OSHA’s own course of conduct prior to its COVID-19 ETS mandate undermines the rationale for OSHA’s sudden decision to use emergency powers it now claims it has and which the three leftist justices have tried to defend. OSHA has not previously sought to invoke its ETS authority to mandate vaccines or testing for workers who may have brought other highly infectious diseases into workplaces over the years, such as the flu.
Indeed, OSHA had only issued a standard for bloodborne pathogen diseases, not for airborne pathogen diseases. COVID-19 is an airborne pathogen disease.
The coronavirus first emerged as a significant health threat in the United States in early 2020. OSHA did not regulate COVID-19 and/or other airborne infectious diseases in workplaces with a specific workplace standard until well into the first year of the Biden administration when senior White House officials came up with the ETS workaround.
Taking so long to issue its COVID-19 vaccine-or-test mandate demonstrates that OSHA lacked a sense of urgency to declare a workplace emergency when left to its own devices. In fact, the Biden administration as a whole has not treated COVID-19 as a national emergency. Consider, for example, its long delay in taking steps to provide sufficient testing capacity to meet rising demand and its permissive attitude towards unvaccinated illegal immigrants entering and remaining in the country.
The leftist justices stated in their dissenting opinion that the majority had substituted “judicial diktat for reasoned policymaking.” To the contrary, OSHA’s unelected bureaucrats substituted their own diktat, profoundly affecting 84 million people and the country’s economy, for publicly accountable policymaking by Americans’ elected representatives in Congress.
Justices Sotomayor, Breyer, and Kagan tried to cloak their own personal policy preferences by pretending to be textualists in deciphering the OSHA statute. They failed in their attempt to “legislate” from the bench. However, packing the Supreme Court with enough leftist justices to constitute a majority will allow the leftists to succeed in “legislating” the progressive Left’s agenda from the bench. That would be a dark day for America.