If Neil Gorsuch is Confirmed, “More Workers Will Die on the Job”

Will the confirmation of Neil Gorsuch be good for worker safety? The clear answer is “No.”

Allow me to elaborate.

Neil Gorsuch is the judicial embodiment of Steve Bannon’s commitment to deconstruct the regulatory state. Emily Bazelon and Eric Posner argue in the New York Times: “The reality is that Judge Gorsuch embraces a judicial philosophy that would do nothing less than undermine the structure of modern government — including the rules that keep our water clean, regulate the financial markets and protect workers and consumers.”

The administrative state isn’t optional in our complex society. It’s indispensable.

So, what exactly is the administrative state, and why will more workers get sick and die if it is dismantled?

A little history. Congress passes laws, such as the Occupational Safety and Health Act, which tells agencies to do stuff — like issue health and safety standards and enforce those standards. But with a fast moving, dynamic economy, Congress is way too slow to issue standards and interpret ambiguous language in the laws. So, as Bazelon and Posner explain:

For the sake of business as well as labor, the updating of regulations can’t wait for Congress to give highly specific and detailed directions. The New Deal filled the gap by giving policy-making authority to agencies, including the Securities and Exchange Commission, which protects investors, and the National Labor Relations Board, which oversees collective bargaining between unions and employers. Later came other agencies, including the Environmental Protection Agency, the Occupational Safety and Health Administration (which regulates workplace safety) and the Department of Homeland Security. Still other agencies regulate the broadcast spectrum, keep the national parks open, help farmers and assist Americans who are overseas. Administrative agencies coordinated the response to Sept. 11, kept the Ebola outbreak in check and were instrumental to ending the last financial crisis. They regulate the safety of food, drugs, airplanes and nuclear power plants. The administrative state isn’t optional in our complex society. It’s indispensable.

The court principle at risk here is known as “Chevron Deference.” If you understand what Chevron Deference is by the time you finish reading this, you will not only understand why Gorsuch is a threat to workers and the environment, but you will also be able to impress your friends and relatives with you deep legal knowledge.

Chevron Deference came from the 1984 Supreme Court case 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.  Basically, what the court said was that where part of a law issued by Congress is ambiguous, the courts can “defer” to interpretations developed by the government agencies charged with enforcing the law, unless such interpretations are unreasonable.

If Judge Gorsuch takes a sledgehammer to workers’ explicit statutory rights as he did in TransAm Trucking, imagine what he may do to rights stemming from agency interpretations. More workers will die on the job. — Jody Calemine, Communications Workers of America

An agency (like OSHA) can spend years or decades studying an issue (like silica), listen to and consider hundreds of hours of witness testimony, tens of thousands of pages of written testimony, determine that a standard is needed, that it reduces significant risk, and that it is economically and technologically feasible before issuing a final standard.  When the lawsuits come in, can a judge (or a congressman) determine whether the agency’s expert decision based on that record  is correct or not? Chevron deference says, basically, that they can’t. The agency’s obligation is to show that its decision is “reasonable,” given the evidence.

Interestingly, even the late Justice Antonin Scalia was a defender of Chevron deference.  “In the long run Chevron will endure,” Justice Scalia wrote in a 1989 article, “because it more accurately reflects the reality of government, and thus more adequately serves its needs.”

Bazelon and Posner fear, based on Gorsuch’s previous opinions and his testimony at his confirmation hearing, that he will vote to repeal Chevron deference when he has the opportunity. “But here’s the thing: Judge Gorsuch is skeptical that Congress can use broadly written laws to delegate authority to agencies in the first place. That can mean only that at least portions of such statutes — the source of so many regulations that safeguard Americans’ welfare — must be sent back to Congress, to redo or not.”

The Frozen Trucker Case

Let’s look at an example of how Gorsuch’s opinions can harm workers: the TransAm Trucking case, also known as the famous “frozen trucker case.” This is a case that Senator Al Frankin (D-MN) grilled Gorsuch on during his confirmation hearing.  Watch it here.  It’s entertaining and shocking

I will let Fordham Law Professor Jed Handelsman Shugarman fill you in on the legal background:

Two judges agreed that Maddin had a right to refuse to operate the vehicle, based on the agency’s interpretation of “operate” to mean not only driving but “other uses of a vehicle when it is within the control of the employee.” In other cases, the agency had decided that partially unloading an overweight trailer and driving counted as a “refusal to operate,” because it was a refusal to operate in the directed manner, according to Shugerman. Gorsuch, falling back on his criticism of Chevron deference, and argued that the agency did not have the authority to interpret the ambiguous phrase “operate” and the company therefore had the right to fire Maddin.

Gorsuch dismisses the Maddin’s dilemma (freezing in an unheated truck cab in subzero temperatures for three hours) as merely “unpleasant,” whereas as Franken describes, he was actually suffering from hypothermia. Shugerman sums up saying “Gorsuch’s opinion in what’s known as the “frozen trucker” case also demonstrates an arrogant and cold judicial personality. I have read very few modern opinions that were more callously written than Gorsuch’s TransAm dissent.”

Franken, at the end of his questioning, sums it up more simply :

It is absurd to say this company is in its rights to fire him because he made the choice of possibly dying from freezing to death, or causing other people to die possibly by driving an unsafe vehicle. That’s absurd. Now I had a career in identifying absurdity. And I know it when I see it. And it makes me—you know, it makes me question your judgment.

More Workers Will Die

Communications Workers of America General Counsel, Jody Calemine, in his testimony at Gorsuch’s hearing (1:09:35), also raises the threat that Gorsuch could pose to a worker’s right to refuse imminently hazardous work, a right that does not explicitly appear in the Occupational Safety and Health Act. The right to refuse is the result of an OSHA interpretation (upheld by the Supreme Court) of OSHA’s non-discrimination language, Section 11(c) of the OSHAct.  If OSHA were no longer allowed to interpret its law, the right to refuse hazardous work could disappear.

Workers in our manufacturing sector deal with exposures to toxic substances. What stands between them and preventable death or injury are two things: laws that we expect to be enforced, and a union to help them exercise their rights under those laws. On a very frequent basis, a worker will identify a hazard in the workplace, and the union will stand with those workers and stop work until the hazard is abated. We take these actions knowing the law – especially our right to refuse unsafe work – is on our side. Workers will not be fired. Lives are saved as a result. The vast majority of American workers, however, do not have a union backing them up, and, for them, robust enforcement of health and safety laws is all the more critical.

If Judge Gorsuch takes a sledgehammer to workers’ explicit statutory rights as he did in TransAm Trucking, imagine what he may do to rights stemming from agency interpretations. More workers will die on the job.