supreme court covid

So of course everyone is dying to know what a non-lawyer like me thinks about yesterday’s Supreme Court arguments about blocking the OSHA Vax-or-Test standard. I listened to the entire argument and live-tweeted it as well. (I live-tweet, not because I think many are reading it, but because I find it somehow calming while listening to the arguments. Instead of knitting.) And if you don’t want to take my word for it, you can listen to the two-hour hearing here or read the transcript here.

Background: Deconstruction of the Administrative State?

The subject of the hearing was whether to re-block the OSHA vax-or-test Emergency Temporary Standard that requires employers with100 or more employees to either require workers to be vaccinated or get tested weekly and wear masks. As you may remember, the standard, which would cover 84 million workers, was blocked by the 5th Circuit Court of Appeals the day after it was issued, and that block was lifted by the 6th Circuit, which then led to this Supreme Court hearing.

Although yesterday’s hearing was technically not about the overall constitutional merits of the OSHA standard, how the judges vote on this will be a strong indication of how they’ll vote when they inevitably consider the merits.

This is more than a decision about how best to protect workers from COVID-19e.  It could mark major progress in the fever dream of former Trump advisor Steve Bannon to “deconstruct the administrative state.”  Despite the clear intent of Congress and the clear wording of the Occupational Safety and Health Act, the 6 Republican-appointed judges can use this decision to significantly impair the ability of the federal government to protect workers (or the environment or consumers), depending on whether this decision goes the wrong way and how broad it is.

Overall impression: I was less depressed coming out of the hearing than going in. Kagan was the real hero, followed closely by Sotomayor and Breyer. Roberts indicated some reluctance to do anything to put workers at more risk. Some of the other justices asked some good questions, as if they were actually still considering the evidence and making up their minds. My optimism may come from the fact that I didn’t think the anti-OSHA people made very good arguments and their friends on the Court didn’t go overboard trying to rescue them in the moments that they foundered.  But,  it’s possible I’m too biased to be objective.

Cast of Characters:

  • Mr. Scott A. Keller, National Federation of Independent Businesses
  • Mr. Benjamin M. Flowers, Solicitor General, State of Ohio
  • Gen. Elizabeth B. Prelogar, Solicitor General of the United States

(Keller and Flowers are colloquially known as “bad guys.” Prelogar is the “good guy.”)

The Environment: Rules for me, but not for thee?

First, as Dr. David Michaels points out in the Washington Post this morning, the Supreme Court is meeting under their own COVID safety rules that are far stricter than those that OSHA has issued. Ironically, Ohio Solicitor General Ben Flowers is testifying remotely because he tested positive on the mandated Court pre-hearing tests. 

How they’ll vote

Who knows? Sotomayor, Kagan and Breyer will obviously vote to support the OSHA standard. They understand that this is an emergency necessitating a standard to protect workers from grave danger, and the Congress clearly authorized OSHA to take these steps in the Occupational Safety and Health Act and more recently, in the American Rescue Plan.

Thomas and Alito will definitely oppose, being as they believe in limiting the powers of the Executive Branch. Thomas thinks there should have been notice and comment.

Roberts showed some signs of reluctance to take steps that might further endanger workers. When Keller tried to use the Postal Service’s claim that the OSHA standard would cause resignations as proof that the standard would cause economic chaos, Roberts replied that “just because the Post Office can’t do it, doesn’t mean that private business can’t do it.”  Roberts also asked Keller if OSHA could require high-risk workers on assembly lines to be vaccinated? Keller said no, but maybe OSHA could require something like barriers. Roberts responded that barriers aren’t as good. Why not the best (e.g. vaccines?) Keller said “the best” would be just  forbidding people from coming in the workplace. Roberts used that to point out that OSHA had actually chosen an lesser alternative.

On the other hand, he then had a line of questions implying that a 50 year old law surely did not anticipate COVID or vaccinations. In Roberts’ view, do laws and Congressional authorizations somehow expire after 50 years?

Kavenaugh, Gorsuch and Barrett.?  If I had to guess, there’s a chance for Kavenaugh to do the right thing, probably much less so for Gorsuch and Barrett.(Gorsuch, by the way, was the only justice not wearing a mask. He normally sits next to Justice Sotomayor, who has diabetes. Sotomayor chose to phone in from home.)

The Main Arguments

Should there be a stay?

This is the first time in 30 years that an OSHA standard has been heard before the Supreme Court, But it was hard to remember today that this hearing was not about the merits of the standard, but whether or not it should be stayed until the merits are decided. As you may recall, the 5th Circuit Court of Appeals stayed the standard on day 2, and then the 6th Circuit lifted that stay.

There are several requirements for a stay. One is that it would be in the public interest.  Justices Kagan and Breyer really went after this argument. Breyer referenced record-high infections, over a thousand deaths a day and overflowing hospitals. Breyer stated that given those facts, it would be unbelievable that it would be in the public interest block a rule that could help stop the pandemic.

Even when Keller wouldn’t answer directly, Breyer demanded to know how there could be any kind of “balance of harms,” in the middle of pandemic. Keller came back to arguing that the rule would cause a massive economic shift and testing is not readily available.

If Congress wanted OSHA to do this, Congress has to be explicit. Sotomayor reminded the NFIB and Justices several times that OSHA did not issue a vaccine mandate. Employers have the authority to just require testing and masks.

Justice Kagan pointed out that there is not need for a quick stay because there are no testing or proof-of-vaccine requirements until Feb 9. The January 10 deadline is just to ensure that the unvaxed are masked. So there will be no large-scale resignations or costs until at least Feb 9. So the need for a stay is very small, right?

The NFIB argued that an immediate stay was necessary. Workers will quit as soon as businesses start making plans. Plus there is a shortage of tests. Workers will quit right away.  With such huge economic implications and states and businesses have already acted

But the bottom line, as former OSHA Chief of Staff Debbie Berkowitz tweeted: “Let’s be clear: If the Fifth Circuit had not suspended the rule, and compliance with the rule had begun before Omicron, hundreds if not thousands of lives would have already been saved and tens of thousands of hospitalizations would have never occurred.”

Can OSHA regulate infectious diseases or require vaccines?

Thomas asks whether OSHA can regulate any infectious disease and whether OSHA has ever done that? Prelogar pointed out the bloodborne pathogens standard that protects workers from AIDS and hepatitis B and C Thomas asked whether that applied to every worker or just health care?vPrelogar responded accurately: Yes, everyone who is exposed to blood.

Kavanaugh asked Keller whether OSHA could issue a vaccine mandate through the normal rulemaking process as opposed to its emergency powers. Keller says no, not even then.

Responding to Keller’s argument that Congress specifically needed  to state clearly that an agency is allowed to require certain medical treatment, Sotomayor interrupted noting that this is not a vaccine mandate. And Congress already gave OSHA the power to regulate workplace safety.  “How much clearer Congress could have been when it charges OSHA with ‘developing innovative methods, techniques, and approaches for dealing with occupational safety and health issues.’ I don’t know how clearer you can be if you’re Congress to tell an agency in an emergency do what’s necessary. Prelogar also reminded the judges several times that the the Occupational Safety and Health Act (OSHAct) mentions vaccines, so clearly infectious diseases were contemplated when the OSHAct was passed.

Alito protesting several times that “I AM NOT SAYING VAX IS UNSAFE!!” nevertheless asked if OSHA had ever required something that might have adverse health consequences. Prelogar could not think of any although Kagan countered that “There are always risk-risk tradeoffs, and one risk significantly outweighs other risk.” And in this case, the risk of COVID clearly outweighs the risk of the vaccine.

Alito argued that workers want to balance their own risk, and some may chose (even if unwisely) to assume the risk. Prelogar noted accurately, that “assumption of risk” (where an employee can essentially sign away their right to be protected) is inconsistent with the OSHAct.

Justice Gorsuch asked Prelogar why OSHA hasn’t mandated other vaccines, like polio or flu. Prelogar responded that workers are already vaccinated against a lot of diseases like polio. Flu doesn’t present a grave danger like COVID, but if we had a repeat of the 1918 flu (which is similar to what we’re facing with COVID) OSHA might regulate.

Can OSHA regulate hazards not “unique to the workplace.”

Benjamin Flowers, the Solicitor General of Ohio, which is also suing OSHA, argued that OSHA doesn’t have authority over this kind of hazard because it isn’t generated in the workplace and is not unique to the workplace.   OSHA regulations protect employees when on the job, not off the job, but OSHA’s ETS and vaccine requirements protect you at work and at home.  COVID is fundamentally different from what OSHA has ever done. You can get COVID in the workplace or at home or at the store. And OSHA is being used — in the words of Biden Chief of Staff Ron Klain — as “a workaround” toward a national vaccine policy.

Gorsuch agreed that OSHA generally only addresses hazards unique to the workplace and Alito agreed, comparing OSHA’s desire to regulate hazards that are not unique to the workplace with “squeezing an elephant into mousehole.”

“The workplace risk is about the greatest, least controllable risk that a person has.” — Justice Elena Kagan

Flowers tried to get away with mansplaining to Kagan that while everyone may be threatened by terrorism  —  even going to work  — that doesn’t make terrorism a workplace issue. (Really? Tell that to all the metal detectors you have to go through to get into government buildings.)

But Kagan wasn’t having it.  She was incredulous at the discussion of COVID not being a uniquely workplace hazard.  Kagan pointed out that every workplace in the country has been affected by COVID. And in what were probably the best moments of the hearing, Kagan showed a rare (for Supreme Court justices) passionate concern and familiarity with workers and working conditions:

The combination of lots of people all going into one indoor space and having to deal with each other for 8 hours or 10 hours a day in those settings. The  combination of environment and the people that are in that environment create a risk. I would think that workplace risk is about the greatest, least controllable risk with respect to COVID that any person has.

Everything else, a person can control.  You can go to a baseball game or not go to a baseball game. You can decide who you’re going to the baseball game with. But you can’t do any of that in workplaces.  You have to be there, you have to be there for 8 hours a day. You have to be there in the exact environment the workplace is set up with. You have to be there with a bunch of people you don’t know and who might be completely irresponsible.  Where else do people have a greater risk than at the workplace?

Flowers responded that OSHA was overly broad, covering everyone, even those who face little risk. Kagan reminded him that “OSHA doesn’t cover people who work alone or outside, but those who work surrounded by other people, in cubicles, mass settings: that where the greatest risk is!”

Delegation and “Major Question”

Everyone seemed to generally accept Congress’s general ability to pass laws and delegate enforcement to the agency administering the law. In this case Congress passed the Occupational Safety and Health Act, giving OSHA the authority to regulate workplace safety and health throughout the country, and pre-empt state action.

And Congress gave OSHA the authority to issue standards, as well as Emergency Temporary Standards where they are “necessary” to protect workers from a “grave danger.”

But, the opponents argue, the economic upheaval that OSHA’s COVID-19 Vax or Test standard would allegedly cause makes it a so-called “major question” that goes beyond OSHA’s discretion and requires explicit Congressional authorization.

What is a “major question?”

That’s not well defined, but the opponents allege you know one when you see one, and because the OSHA standard will cause mass economic upheaval, it covers a lot of people, and it costs a lot of money, and it threatens the existence of Western civilizationt, it’s a “major question” that requires explicit Congressional authorization beyond the 1970 Occupational Safety and Health Act.

Prelogar pointed out (again) that the pandemic and OSHA’s rule may be a big deal, but Congress had given OSHA authority to regulate infectious diseases, and doesn’t need to “re-up” that authority, just because those protections are a “big deal.”

As Georgetown Law’s Hannah Mullen points out in the “Balls and Strikes” blog:

The justices’ questions suggest an absurd conclusion: that because OSHA has never imposed a vaccine-or-test mandate in response to a pandemic before, it can’t do so now. Instead, Congress must pass a brand-new law specifically authorizing OSHA to protect employees from the spread of disease—maybe specifically from COVID-19—in the workplace…. What the conservative justices want to do, apparently, is require that Congress magically foresee every possible measure that would be necessary to address future emergencies, and then spell out the authorization for those measures in painstaking detail in the U.S. Code.

Economic destabilization?

Regarding the major economic destabilization that the standard would supposedly cause, Sotomayor added that if you’re concerned about economic instability, getting sick with COVID keeps people out of the workplace for extended periods of time. And Justice Breyer noted that OSHA had already taken possible employee resignations into account when determining feasibility. “OSHA takes that into consideration and said ‘in our view, yeah some may quit. But more may quit if they have to work at risk with others, or if they get sick.'”

Is the ETS “necessary” to protect workers?

The question of whether or not the ETS was “necessary” to protect workers was also discussed.  Keller argued that OSHA had to establish necessity by considering other alternatives, such as plastic barriers. Kagan countered that “We all know what the best policy is: vaccinations is best, masks are second best. So if thousands are still dying every day, why not do what’s best?”  Kagan pointed out that OSHA “has done everything but stand on its head to show that no other policy will prevent sickness and death.

Barrett also raised the “alternatives question, but Prelogar pointed out that OSHA had extensively discussed other alternatives and found them less effective. (Subtext: Did you read any of the materials OSHA provided?)

Who Decides?

This is a subset of the delegation/major question argument.  Opponents of the standard argued that the states get to decide vaccine mandates because they hold police and public health powers under the Constitution.  Or maybe Congress get to decide how to protect workers because it’s a “Major Question?” Or maybe the Courts get to decide because…well, because they’re the Courts? Roberts noted that the federal government had never done this before.

Keller argued that OSHA has no infectious disease expertise and OSHA would have been an odd place for Congress to put the power to require vaccinations. OSHA isn’t even in the Department of Health and Human Services. Kagan countered that OSHA has expertise over workplaces . OSHA consults with other agencies about public health issues and brought that to their knowledge about how workplaces function.

Kagan asked Prelogar whether she though Congress had the expertise and speed to regulate safety in each different American workplace?  Prelogar responded that no, Congress can’t legislate with that speed or granularity, especially in an emergency. 

And in any case, Congress already acted and decided that question when it passed the OSHAct. The OSHA ETS clearly falls within terms of OSHAct. Statutory language already exists. Does Congress have to do more?  No.

Roberts countered that the OSHAct is 50 years old (“almost closer to the Spanish flu than to today’s problem”) and didn’t contemplate giving agencies free reign for OSHA to enact such a broad regulation that wasn’t foreseeable in 1970 and this is something that the federal government has never done before.  Prelogar responded that Congress actually did contemplate that there would be unseen grave dangers and therefore specifically gave OSHA authority to take emergency action. The OSHAct actually mentions immunization, and finally, Congress recently recognized OSHA’s authority to protect workers from COVID in the American Recovery Act.

When Flowers explained that the states, and not OSHA have the authority to regulate public health because the federal government doesn’t have police powers,  Sotomayor shot back that the feds sure as hell do have police powers when it comes to workers: The OSHAct gave that power to OSHA “and OSHA is  constitutional.”

When Keller argued that only the states have authority to act, Sotomayor reminded him that some states are forbidding employers from requiring vaccines or masks.

Scope: Why is (almost) every workplace covered instead of just high risk workplaces like hospitals or meatpacking?

The opponents argue that some workplaces are at very high risk (e.g. health care or meatpacking) and could be covered under such an ETS, but others are at much lower risk. Similarly, some workers (e.g. over 65) are at higher risk, but that young workers, even if unvaccinated, are at lower risk than the oldsters.  The OSHA standard is therefore far too broad.

Solicitor General Prelogar pointed out that OSHA found that all unvaccinated workers, in any workplace where there is contact with other people, are at grave danger, even if some workplaces (e.g. health care and meatpacking) may be at even greater danger.

The Dog the Didn’t Bark: Sacrificing Health Care Workers?

Last week, OSHA pulled the rug out from under health care workers by withdrawing the 6-month and one-week old health care worker Emergency Temporary Standard.  While OSHA has not provided a good explanation, OSHA pundits assume OSHA pulled the plug because the Justice Department felt vulnerable if it appeared that a “temporary” standard could be extended indefinitely.  But that issue barely came up today.  So did that silence show that OSHA succeeded in pre-empting (and silencing) those questions, or were healthcare workers sacrificed for nothing?

What’s Next?

As I said, this was not a hearing on the merits. (The 6th Circuit has first crack there.) This is a hearing on whether there should be a stay before the first enforcement deadlines come into effect on Monday. We may actually hear back from the Court this weekend. Whether or not it’s stayed, the 6th Circuit will decide the overall constitutionality, and then the loser will undoubtedly go back to the Supreme Court again. Buckle in, it will be a long legal journey. Meanwhile, while the justices fiddle, workers continue to get sick and die.