Needless to say, lots of smarter people than me have written and spoken about the terrible Supreme Court decision to block OSHA’s vax-or-test Emergency Temporary Standard. Here is a short list of some of the better ones that I read. I’m sure there are many more. Feel free to add your favorites to the comments. Let’s start with me and my former fearless leader:
Michaels and Barab: What OSHA Needs To Do Now
In a New York Times op-ed, former OSHA Assistant Secretary David Michaels joins me to point out that the terrible Supreme Court decision nevertheless indicates a way forward for OSHA to issue a more risk-based standard that would protect workers with elevated risk — similar to what President Biden promised to do on his second day in office. “should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers.”
The Atlantic: Right-Wing Culture War
Adam Serwer writing in the Atlantic calls the Supreme Court decision “little more than culture war dressed up in the language of constitutionalism.” Their decision is untethered to the clear language of the Occupational Safety and Health Act, but rather “hinges on a new and alarming embrace of the right-wing culture war against vaccination, a deeply regrettable cost of conservative political strategy and political-identity formation.”
Skeptical Raptor: Underling Everything is Politics
For all of you legal eagles out there, University of California at Hastings Law Professor Dorit Reiss’s Skeptical Raptor discusses the Court’s consideration of the appropriate role for administrative agencies, as well as the relative role of the federal government and state in protecting worker health. “And overlying all, always in public health, are politics.” Reiss tears apart the Court’s argument that the OSHAct is 50 years old, and “OSHA has never done this before,” pointing out that “The reason to delegate power to act in an emergency is that emergencies, by their nature, are hard to predict and hard to suggest responses to in advance.” Reiss points out that it could have been worse. If the most conservative justices, led by Grosuch, had their way, they would “dramatically curtail the ability of Congress to give power to agencies.” Long analysis, but worth the read.
Slate: Supremes Have Become the Legislative Branch
By claiming that OSHA’s emergency authority somehow didn’t extend to hazards that also exist outside the workplace, and the vaccine-or-test rule was something OSHA had never done before, the Court’s decision was “untethered to the plain text of the law, which obviously encompasses OSHA’s rule,” according to Mark Joseph Stern writing in Slate. “The agency has long regulated risks ‘beyond the workplace walls,’ including fires, excessive noise, unsafe drinking water, and faulty electrical installations. And if the vaccinate-or-test policy is unprecedented, that is because it is in response to an unprecedented event: the deadliest pandemic in American history.” In summary, while pretending to be “drawing on some ancient legal principles to police the boundaries between Congress and the executive,” in reality, “in 2022, the Supreme Court serves as the nation’s most powerful policymaking institution.”
Liz Shuler (AFL-CIO): OSHA Still Has a Job to Do
AFL-CIO President Liz Shuler calls on the Biden Administration to “provide protections beyond vaccines. OSHA must uphold the emergency COVID-19 standard for health care workers and issue an emergency standard to ensure all at-risk workers are provided layers of protections against COVID-19 transmission at work like improved ventilation, distancing, masking and paid leave.” And you can listen to Shuler on Marketwatch explaining why “We will not beat this pandemic until we stop the spread of the virus at work.”
Debbie Berkowitz: Workers Don’t Control the Workplace
And if listening is your thing, former OSHA official Debbie Berkowitz explains on Marketplace why the Court’s decision was so bad for workers: “When you’re at work, you don’t get to choose who you work with, who you’re staying next to, what customers you interact with. You have no control over the safety of your workplace. And yes, now it’s going to be up to employers to implement protections on their own.”.
Ruth Marcus: The Elite Plays With One Set of Rules….
Ruth Marcus writes in the Washington Post that the decision is “yet another example of the elite playing by one set of rules while applying a different standard to the masses.” Mandatory distancing, tests and masking for the Supremes, but not so much for “the factory workers standing cheek by jowl on assembly lines, the office workers crammed side by side at their cubicles, the cashiers and sales clerks at retail establishments,”
Robert Reich: It May Get Worse
Former Labor Secretary Robert Reich, writing in the Guardian fears that the Supreme Court’s failure to respect the clear language of the OSHAct reveals its “intent on gutting the authority of regulatory agencies to interpret federal laws.” That could be really bad. OSHA clearly didn’t need Congressional approval to issue its standard, but “By ruling otherwise, the supreme court’s conservative majority today signals it’s willing to strike down hundreds of regulations protecting the health and safety of Americans.”
Marty Walsh: Disappointed
Current Labor Secretary Marty Walsh expressed his disappointment and called on “all employers to require workers to get vaccinated or tested weekly to most effectively fight this deadly virus in the workplace. Employers are responsible for the safety of their workers on the job, and OSHA has comprehensive COVID-19 guidance to help them uphold their obligation.”
Fox News: Victory of FREEDOM over COMMUNISM!
Let them breathe COVID
Added From the Comments and Other Late Additions
Linda Greenhouse: Politics Now Rules the Court
Veteran SCOTUS watcher Linda Greenhouse describes in the New York Times how the court majority has “yielded to politics to disable an agency from carrying out its statutory mission to protect the health and safety of the American work force,” contrasting it with a 1981 decision about OSHA’s cotton dust standard “when the Supreme Court was willing to rescue an administrative agency’s authority from the storms of politics.”
Simon Lazarus in The New Republic: It Could Have Been Far Worse
Simon Lazarus, writing in the New Republic, notes that the majority of the majority (e.g. Roberts, Kavenaugh and and ) did not — unlike Gorsuch, Alito and Thomas — take the view that the Occupational Safety and Health Act (as well as all environmental, consumer protection and other laws) are unconstitutional. That interpretation, which in the words of Justice Kagan — which would have made most of the federal government unconstitutional — was in the minority of the majority. The 6-3 majority of the court ruled that some workers are entitled to some protection under the Occupational Safety and Health Act, but that the vax-or-test standard went too far, and is not what the writers of the OSHAct intended. Nevertheless, that interpretation (as counterfactual as it may be) leaves OSHA free to issue a more targeted and risk-based standard (as David Michaels and I recommended here.) Lazarus also warns federal policy makers that they need to have a realistic view of where the Supreme Court is right not and fashion policy appropriately, rather than engaging in wishful thinking that somehow the DOJ cavalry will ride in at the last minute to rescue them.
Other good stuff out there? Add it to the Comments below. Oh, and subscribe to Confined Space in the upper right-hand column.