Supreme Court OSHA

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.


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42 thoughts on “Supreme Court’s Disastrous OSHA Decision: What Others Are Saying”
  1. Folks definitely need to read these and ones from the other side that point out the terrible job OSHA and the Biden Administration did on the ETS and the rest of the VID response. I sent OSHA a mirror so they could find the source of their mistake. Some do speculate that one or both of the above parties had no intention to prepare an ETS that would survive.

    It is interesting to note that there are no public health efforts to do vax mandates and the govts’ response overall has been simply horrible. We can do better.

    It is important to note that we do have the answer to stopping the spread: testing. We’ve known that for some time; this week is the beginning of the govts’ attempt to try testing. Odds are they will fail, but it is the answer. Do stock up on the tests and test before heading out. Under dream plan, a family of four can group test every day on taxpayer dime. If that was done; the spread would stop.

  2. “The OSH Act holds the employer responsible for protecting their workers from recognized hazards, not a governmental agency. By saying the Department of Labor (OSHA) is responsible for keeping workers safe, deflects where the true responsibility lies, with the employer.”

    – John L. Henshaw
    John L. Henshaw is a former U.S. Assistant Secretary of Labor for the Occupational Safety and Health Administration, serving from 2001-2004.

  3. I’m horrified, but not at all surprised, at the SCOTUS ruling that stayed OSHA’s vaccination/testing/masking ETS. My inescapable sense, is that SCOTUS is no longer calling balls and strikes, but is rather serving as the weathervane for a bankrupt political ideology that is dead set on sabotaging the lives (and now the health) of everyone but the most elite component of our society.

    In the NFIB v. OSHA/OHIO v. OSHA ruling, SCOTUS has created a gateway to “bad law” that will take much time and effort to undo. Somehow and someway, however, that must be done.

    How ironic that SCOTUS, which has strictly enforced rules dictating a complete ban on public entry into its sacred edifice, declaring mandatory PCR COVID-19 testing for all counsel planning to present in-person oral argument and mandatory donning of a N95 or KN95 facemask…… has declined to allow even part of that protection to our country’s workers who themselves face a far greater threat for virus transmission and infection.

    How does the majority sleep at night? Or do they?

      1. I’ll answer for Ron. No, but they reduce transmission. Question for you. Do the COVID-19 vaccinations significantly reduce severe symptoms, hospitalizations and deaths?

        1. First off Jordan, I love how you don’t allow Ron to speak for himself; that’s very telling of your character and it fits perfectly with your support of an authoritarian mandate such as this. But I digress…
          There’s two parts to answer here.
          1. The shots DO NOT reduce transmission of COVID. Nowhere have I seen any evidence of this being true; you should ban yourself from this blog for spreading misinformation!
          2. Yes, the COVID shots do reduce severe symptoms; FOR THE PEOPLE WHO TAKE THE SHOTS!

          Jordan, please explain to me how your chance for severe COVID symptoms are increased by me not taking the shots? Seems to me that I’m taking the risk here, but how does that impact you? My body, my choice? Sounds reasonable.
          Don’t forget, these “vaccines” are only designed to reduce the severity of the disease; not to eradicate it.

          1. Anthony: A couple of things. First, the vaccine certainly doesn’t eliminate transmission of COVID-19, but there is evidence that it reduces it. I’m sure if you try hard, you can find some studies on the internet. Let me know if you need help.
            Second, OSHA is required to protect all workers from death or serious physical harm. That includes unvaccinated workers — even if they don’t want to be vaccinated. Also, workers who can’t be vaccinated for legitimate reasons, or those who are immunocompromised.

            Finally, as I’ve warned you before, this is a place for serious discussion. So cut out your characterizations of my character — or the character of others. That’s what Twitter is for. This is your last warning. Next time I’m adding you to the spam list.

          2. While I’m perfectly capable of answering for myself, I don’t come to this blog with reliable frequency and am thus grateful to Jordan for responding in a manner that would have certainly been along the same lines as my own response.

            I would also add, that while being fully vaccinated doesn’t translate to complete inability to transmit the last few variants, peer reviewed studies have shown that COVID-19 viral loads are certainly reduced amongst the vaccinated (and with that reduction the ability to pass on the infection) within the balance of the population. In example:

            But that’s really not what’s most important. If all of us that can safely receive the inoculations get vaccinated, the risk of transmission (and its sometimes horrible outcomes) drops proportionately. Those who simply refuse to accept the science that has proven the safety and effectiveness of the approved vaccines not only put their own health and safety at risk, they also throw into great jeopardy the health and safety of:

            1). The +/- 10% of the population for whom the vaccines are ineffective;
            2). Fellow citizens whose auto-immune systems have been compromised through illness and/or its treatment;
            3). The elderly and the infirmed; and
            4). Fellow citizens who cannot, for qualifying reasons, be vaccinated.

            So, in actuality, it’s not necessarily the risk of severe outcomes being offered by the unvaccinated to the vaccinated that we should be most concerned with, but rather those risks being selfishly thrown at others who are not effectively protected from infection by the “willfully unvaccinated.”

            And what’s the rationale of those who consciously choose to refuse vaccination?
            According to the FDA, they are no longer able to effectively argue that the vaccines are unsafe, DNA-altering, cancer causing, sterilizing, etc., etc. Most often, it’s the resentment associated with “personal liberty infringement.” Over the course of this pandemic we’ve experienced a historic explosion of rugged individualists. And if these life saving vaccine decliners aren’t rugged individualists, they’ve magically become (through the auspices of Google and Facebook) Constitutional scholars.

            As we close in on one million COVID-19 related deaths in our own country, this really isn’t a very difficult argument. Sadly, however, there are still those out there who would ignore, impugn and/or disassociate that regrettable statistic. I try not to argue with them any more. They are what they are…….

  4. The Supreme Court’s ruling was entirely correct, but why? Firstly, using OSHA to enact and thusly enforce vaccinate mandates was an end-run around our constitutional rights as to the privacy of our bodies and what we have every right to allow or not allow into our bodies (and don’t come back with mask mandates when you become enraged by my response- think seatbelt mandates, they have nothing to do with what’s being mandated into our physiological, biological systems). Quite frankly, the Biden administration knew that enacting and enforcing a general, public mandate would never see the light of day; again, it’s unconstitutional and would never pass muster. Let us have an example: All of those demanding vaccine mandates will cry “public safety” our right to our own bodies be damned but hear me out. In Roe vs Wade the Supreme ruled:

    Abortion and right to privacy

    After dealing with mootness and standing, the Court proceeded to the main issue of the case: the constitutionality of Texas’s abortion law. The Court first surveyed abortion’s legal status throughout the history of Roman law and the Anglo-American common law. It also reviewed the developments of medical procedures and technology used in abortions.

    After its historical survey, the Court introduced the concept of a constitutional “right to privacy” that it said had been intimated in its earlier decisions Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and in Griswold v. Connecticut, which involved the use of contraception. Then, “with virtually no further explanation of the privacy value”, the Court ruled that regardless of exactly which of its provisions were involved, the U.S. Constitution’s guarantees of liberty covered a right to privacy that protected a pregnant woman’s decision whether to abort a pregnancy.

    This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or … in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether to terminate her pregnancy.

    — Roe, 410 U.S. at 153.

    The Court reasoned that outlawing abortions would infringe a pregnant woman’s right to privacy for several reasons: having unwanted children “may force upon the woman a distressful life and future”; it may bring imminent psychological harm; caring for the child may tax the mother’s physical and mental health; and because there may be “distress, for all concerned, associated with the unwanted child”.

    But the Court rejected the notion that this right to privacy was absolute. It held instead that the abortion right must be balanced against other government interests. Two government interests were held to be sufficiently “compelling” to permit states to impose some limitations on pregnant women’s right to choose to have an abortion: first, protecting the mother’s health, and second, protecting the life of the fetus.

    Now with that all said, what is the point I wish to make? The standard is a person’s (women are people after all as men are as well) right to their own bodies and what will become of their bodies if they do not have control over them. And clearly stated, at some point:

    But the Court rejected the notion that this right to privacy was absolute. It held instead that the abortion right must be balanced against other government interests. Two government interests were held to be sufficiently “compelling” to permit states to impose some limitations on pregnant women’s right to choose to have an abortion: first, protecting the mother’s health, and second, protecting the life of the fetus.

    A State may properly assert important interests in safeguarding health, maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. … We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
    — Roe, 410 U.S. at 154.

    So where does this leave us? The government nor our employers may force us to put into our bodies elements we believe may damage our physiology, cellular make-up as well as our chemical make-up (please read the “Pfizer Documents” concerning estimates on what might happen to those taking the vaccine- look it up and read the documents, Pfizer’s own documents) as not enough is yet known about the overall effects of the vaccine once injected (read up on the subject, for a start, please read Alex Berenson’s ‘Unreported Truths about COVID-19 and Lockdowns’ [a five booklet series] Part 4: Vaccines). Now as to (a) abortion and vaccines? Like it or not, an unwanted child remains an issue for entire communities and their wellbeing. (b) Going back to masking-social distance-sanitizing, as in Roe vs Wade, the state has a right to protect someone or something else as being part of the equation, as to masking-social distance-sanitizing, the public has a right as well as a need for these things.

    Secondly, OSHA protocols are to enforce workplace safety (here masks-social distancing-sanitizing come into play as OSHA has every right to mandate face masks, hand sanitation and all the rest in the workplace, and I might add, force the employer to provide such PPE as necessary) but their protocols end when the worker, you and me, leave our place of employment. And here’s where the rubber-meets-the-road: Does the worker have the ability to leave the vaccine behind him or her in the workplace? Leaving the warehouse or wherever, I can take off the mask, not sanitize my hands nor social distance (all things I do on a regular basis, that being, mask-social distance-sanitize).

    Finally, and on a personal note, many will accuse me of being a right-wing, conservative (fringe) fool who has no idea of “science” or other such things which the “liberal” community finds “correct.” This’ hardly the case as I am lifelong socialist, a Marxist to my core. And as Professor (economist) Richard D. Wolff states: “Socialism is Democracy in the workplace.” The attempt by the Biden administration to force the vaccine down our throats (okay, in our arms) by using our employment status (try and navigate this state in our or any other nation without employment is suicidal to say the least) stinks to the high heavens of authoritarian dictates by a government enslaved by BIG PHARMA and corporate power’s calling the shots (excuse the pun oh but what fun) and attempting to circumvent our rights and privileges as citizens of the nation all in the name of corporate profits. God, I cannot stand liberals!

  5. Jordan,
    Once again you’ve done a tremendous job at showing your bias to the Democratic Party with these comments; well done.
    I really enjoyed reading the comments from Mark Oglesby here, he lays out some interesting points. While I’m sure I’d disagree with him politically, I agree with him 100% on this issue.
    As for the comments that were gathered here by Jordan, I think you could do a lot better than just pulling together comments that fit with what you believe. It’s truly amazing how often people on the left don’t even want to seek out or listen to anything or anyone that might conflict with their beliefs. It’s actually very childish…

  6. See also today’s op-ed by former NY Times Supreme Court reporter Linda Greenhouse, recalling the Court’s last decision on the merits of an OSHA rulemaking in 1981, involving the textile industry’s challenge to the Cotton Dust Standard and the effort by Reagan’s henchmen to impose a cost-benefit test on such rulemakings. They lost then, but are clearly gaining ground now.
    Having participated in that effort and attended the oral argument on Jan. 21, 1981, this contrast is so painful. Up there with losing the Ergonomics Standard in the Congress in 2001.
    Eric Frumin, Strategic Organizing Center

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