Seven Reactions to NFIB v. Department of Labor

PUBLISHED

Luke Herrine (@LDHerrine) is an Assistant Professor of Law at the University of Alabama and a former Managing Editor of the LPE Blog.

Noah Zatz (@NoahZatz) is a Professor of Law at UCLA School of Law.

Veena Dubal (@veenadubal) is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco.

Blake Emerson (@BlakeProf) is Assistant Professor of Law at UCLA School of Law.

Diana Reddy (@dianareddy) is a Doctoral Fellow at the Law, Economics, and Politics Center at UC Berkeley Law, and a PhD candidate in UCB's Jurisprudence and Social Policy Program.

Nate Holdren (@n_hold) is Associate Professor of Law, Politics, & Society at Drake University.

Caroline Grueskin (@cgrueskin) is a 3L at Yale Law School.

Charlotte Garden is (@CharlotteGarden) Associate Professor at Seattle University School of Law.

PUBLISHED

Luke Herrine (@LDHerrine) is an Assistant Professor of Law at the University of Alabama and a former Managing Editor of the LPE Blog.

Noah Zatz (@NoahZatz) is a Professor of Law at UCLA School of Law.

Veena Dubal (@veenadubal) is Associate Professor of Law at U.C. Hastings College of the Law, San Francisco.

Blake Emerson (@BlakeProf) is Assistant Professor of Law at UCLA School of Law.

Diana Reddy (@dianareddy) is a Doctoral Fellow at the Law, Economics, and Politics Center at UC Berkeley Law, and a PhD candidate in UCB's Jurisprudence and Social Policy Program.

Nate Holdren (@n_hold) is Associate Professor of Law, Politics, & Society at Drake University.

Caroline Grueskin (@cgrueskin) is a 3L at Yale Law School.

Charlotte Garden is (@CharlotteGarden) Associate Professor at Seattle University School of Law.

Early this month, the Supreme Court blocked OSHA’s vaccine-or-test mandate for large employers from taking effect. The decision, which arrived amid record numbers of Covid-19 hospitalizations, will result in hundreds if not thousands of additional deaths. It also raises broader questions about the future of the regulatory state and the willingness of the Court to impose its own policy preferences on the country. To help sort through the meaning and implications of this ruling, we asked Luke Herrine, Noah Zatz, Veena Dubal, Blake Emerson, Diana Reddy, Nate Holdren, Caroline Grueskin, and Charlotte Garden for their initial reactions.

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Luke Herrine

Well, okay, so the reactionary majority of the Supreme Court (effectively) struck down OSHA’s vaccine mandate. And it did so by invoking and expanding its freshly crafted “major questions doctrine”, which punishes administrative agencies for using broad delegations of power in new ways. And, via Justice Gorsuch’s concurrence, it warns that it is ready to strike down broad delegations of power even if used in familiar ways. Bad. Layers of bad.

But, still, the vaccine mandate has had its impact. It has compelled many companies to develop their own administrative capacity to enforce mandates, causing them to coerce many thousands of people to get vaccinated and/or wear masks, surely saving lives. And it’s an impact that continues to reverberate. Having put vaccine and masking requirements in place, many firms will surely prefer not to incur the expense of dismantling them. And it’s easier for organized workers to fight for a status quo than for a change. And, of course, those who have been vaccinated because of the mandate will remain so.

So OSHA’s efforts were not wasted. The Biden Administration was right to go out on this limb (or, rather, be dragged out there), even though they lost in court.

There’s a more general lesson here. However much power the Court has to rewrite the rules for legitimate government action, it only gets to do so after another branch has taken action and after litigation challenging that action makes its way up the appellate hierarchy. The initiative is with the (overtly) political branches. And it is initiative that must be taken if effective–let alone transformative–action is to coexist with this Court.

Administrative branch officials are accustomed to internalizing the Court’s interpretive stance, or at least designing action with the anticipation that it is likely (if not certain) to be upheld. With a Court opposed to much of the modern administrative state, officials should become more accustomed to separating out the question of what they can legitimately do and how the Court will view their actions. They should think more in terms of what they can get away with in the face of a hostile Court. That should include taking actions that are likely to be struck down, so long as those actions rest on a justifiable interpretation and some of the effects of those actions will survive a court’s disapproval.

In his concurrence, Justice Gorsuch rightly describes “the central question” of NFIB v. OSHA as “Who decides?” He and his colleagues should not be the only people who get to answer that question.

Noah Zatz

Whenever a conservative court strikes down an OSHA regulation, it’s tempting to cry “neoliberalism.” But the majority opinion didn’t pit costly and burdensome government regulation against the otherwise free market. Instead, the decision’s rhetorical protagonist was the anti-vax worker, not the efficient employer.

The Court elides how OSHA placed exactly zero legal obligations on individual workers but instead regulated how employers manage the workplace. It characterizes OSHA’s rule as “order[ing] 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense.” The elision of the employer renders this sentence literally false. The regulation let employers choose whether to pay for unvaccinated workers’ tests or require them to bear the costs.

Nor is this merely a Lochnerian dodge that invokes free contract between worker and employer to undermine employment regulation. To the contrary, the opinion rests on the opposite premise, that employers control their workers. When an unvaccinated worker pays for testing, this worker has been “forced” to pay, not merely “chosen” to comply rather than seek a better deal from another employer. Indeed, even the Court’s rightly ridiculed contention that contracting COVID at work is not an “occupational hazard” fits this frame. The objection is not that employers cannot be held responsible for widespread risks but instead that the government cannot leverage workers’ economic dependence on employers to impose a public health measure “[r]equiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees.”

But do not be confused. This is a Trumpist, not leftist, departure from a liberal account of labor markets. The opinion elides not only the employer but also the vast majority of actual workers, including the vaccinated and the unvaccinated who prefer a workplace that doesn’t threaten them with COVID. Taking employer domination seriously would mean acknowledging that these workers have no meaningful freedom to protect their own and their community’s health if they are forced to work in an unsafe setting. But instead, the Court indulges the Trumpian grievance politics of those who conceive their own freedom as the entitlement to disregard or dominate others.

Veena Dubal

In his concurring opinion, Justice Neil Gorsuch—who, according to recent reports, refused to wear a mask in his workplace to protect his Covid-vulnerable colleague Justice Sonia Sotomayor—breathes new life into the “non-delegation doctrine.” The question, he writes, is not “how to respond to the pandemic, but of who holds the power to do so” (my italics). He is incorrect. Both the majority and concurring opinions should be understood not just as direct judicial attacks on congressionally-delegated powers of the administrative state in relationship to workers’ rights and protections but also as the express judicial endorsement of specific world views. By fundamentally limiting the powers allocated to OSHA by Congress, the Court artificially restricts possibilities of governance for the common good. Indeed, the separation of power concerns upon which the conservative justices hang their hats are red herrings for particular economic and political perspectives (which, as Justice Holmes beautifully wrote in his Lochner dissent, “a large part of the country does not entertain”). 

To argue that OSHA’s emergency temporary standard makes the agency “little more than a ‘roving commission to inquire into evils and upon discovery correct them,’” Justice Gorsuch cites to A.L.A. Schecter Poultry Corp v. United States (the sick chicken case of 1935) in which the Supreme Court struck down the National Industrial Recovery Act on a separation of powers theory. In political response to the growing crisis of the Great Depression and Roosevelt’s legislative attempts to change the composition of the Court, the Supreme Court retreated from this analysis in the late 1930s and upheld subsequent workers’ rights legislation. Gorsuch’s reference to the case is a clear endorsement of the Lochnerian world view in which business interests outweigh the lives and livelihoods of workers and their families. 

Without a state-provided safety net outside of employment, worker protection laws like the Occupational Safety and Health Act of 1970—and the administrative agencies they created—are in practical terms the only system of security and safety many people in the US have. Restricting OSHA’s ability to keep workers safe from an unprecedented deadly disease under the guise of “separation of powers” should be understood as yet another ideological move by this Court to obstruct collective and individual freedoms (and lives) in favor of corporate ones.  

Blake Emerson

The Supreme Court’s decision in NFIB v. DOL is a breathtaking work of staggering judicial aggrandizement. The statutory provision underlying OSHA’s vaccine or testing mandate authorizes the agency to issue “emergency temporary standards” that are necessary to protect employees from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” In holding that this provision did not authorize the mandate, the Court relied, once again, on the major questions doctrine. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Court concluded, plausibly, that the power was vast, but, implausibly, that Congress had not spoken clearly. The text is crystal clear that OSHA may issue emergency standards needed to protect employees against serious workplace health risks. The Court did not seriously dispute OSHA’s factual findings that COVID is such a risk and that vaccination would be “the most effective and efficient” way to address it. Rather, it argued that Congress would not have impliedly given the agency the vast power to impose a vaccination or testing mandate. But it makes little sense to say Congress must explicitly authorize the precise kind of measure OSHA took. The statutory provision concerns “emergenc[ies],” which, by definition, involve unforeseen circumstances. The appropriate response to an emergency cannot be minutely prescribed in advance.

As Anita Krishnakumar has observed, the opinion is a gross departure from the textualist methods of interpretation the Court has recently favored. The Court makes the bizarre argument that COVID cannot be an “occupational” health hazard because it a “universal risk” that exists in other environments beside the workplace. By this logic, OSHA could not regulate exposure to asbestos, or bloodborne pathogens, or fire (all of which it has done in the past). The Court suggests that, unlike the measures OSHA has undertaken to respond to such risks, a vaccination “cannot be undone at the end of the workday.” This is an ad hoc distinction with no relation to the statutory text or broader principles of administrative law. Of course, if we are to turn to functional considerations, contracting COVID on the job cannot be “undone at the end of the workday” either.

It’s worth distinguishing this ruling from the Court’s opinion in Alabama Association of Realtors v. HHS, where it struck down the CDC’s tailored renewal of an eviction moratorium to reduce the spread of COVID. In that case, the Court reached the reasonable (though, in my view, mistaken) conclusion that the statutory text did not contemplate the power to freeze residential lease evictions in areas with high rates of COVID transmission. The Justices could point to arguably limiting language in the same statutory subsection the government invoked to support the moratorium. Here, by contrast, the Court’s legal argument does not pass the smell test. The per curiam opinion comes to an ideologically motivated determination not to read broad statutory language broadly.

This cursory ruling is sure to be cited in future cases as the Court continues to restrict the regulatory state. I wouldn’t be surprised to see it in play when the Court considers the scope of the Environmental Protection Agency’s authority to fight climate change this term.

Diana Reddy

As someone who studies the impact of popular protest on law and who is concerned about structural inequities in the employment relationship, I’ll admit I am not completely unsympathetic to the abstract principles articulated by the majority. For better or worse, there is significant popular resistance to COVID-19 vaccines, vaccinations are more intrusive than other health and safety measures, and these vaccines rely on a newer technology.  As such, I think many of us would prefer to see a COVID-19 vaccine requirement implemented with clear and resounding democratic imprimatur in the here and now, rather than through emergency agency rule-making based on previously delegated authority. Moreover, as policy matter, I am concerned about general public health measures being implemented through the workplace. To be clear, I support vaccine mandates, but in an ideal world, would like to see them mandated for all, as a duty attendant to being a member of this polity, not just on those who work for a living, as a requirement of their continued economic stability. This is not to say that workers don’t want vaccines; a great majority of them do. And they deserve safe workplaces. But our system’s preference for economic over political coercion can nonetheless have troubling distributive and dignitary consequences.

All that said, what does concern me about this case is that the majority stubbornly ignores the actual facts presented, by treating the rule as a vaccine mandate, when it is not. As the dissent points out, the rule was carefully crafted with political realities in mind. As such, it incentivizes vaccination but equally permits masking and weekly testing. Reframed as a mask-and-test mandate (with a vaccination safe harbor), the argument that it exceeds the scope of OSHA’s delegated power to protect worker health and safety, in the midst of the deadliest crisis in our history as a nation, loses its credibility.

Nate Holdren

In blocking the vaccine mandate, the current majority of the Supreme Court has guaranteed more deaths, hospitalizations, trauma, and long-term disabilities. The Biden administration guaranteed those same harms by delaying implementation of the mandate until after the holiday shopping rush, and by pursuing a vaccine-only approach to the pandemic.

OSHA estimated that the mandate would lead to 19 million more vaccinations, a 9% increase in the vaccination rate in the US. We had a similar increase between the end of August and the present. A 9% vaccination rise would be good but far from sufficient. To minimize death and disablement requires both widespread vaccination and non-pharmaceutical interventions, above all institutional actions like better ventilation, paid sick days, paid shutdowns, more remote work, etc. To fail to pursue a full spectrum strategy is to choose death. Harvard epidemiologist Justin Feldman has detailed the Biden Administration’s terrible pandemic response at some length, including abandoning an earlier proposed OSHA regulation and allowing the OSHA Temporary Emergency Standard for healthcare workers to expire in late December.

The Biden administration has neglected significant efforts at institutional action because minimizing death and disablement is simply not its priority. Instead, it has prioritized ensuring the harms of COVID-19 are not its political responsibility. The Supreme Court is now helping the administration to pursue this priority, precisely by serving as a convenient antagonist who can absorb blame. While the court’s majority certainly deserves nothing but derision for blocking the mandate, the Biden administration deserves none of the appearance of blamelessness that it must hope to get by scapegoating the court, just as it has scapegoated the unvaccinated, Republicans, the mutating virus, and the alleged unwillingness of an exhausted populace to put up with masks and lockdowns.

It remains possible for the government to hasten the end of the pandemic and, in the meantime, to shelter people from infection. The Biden Administration is doing neither right now, precisely because they face no serious consequences for their actions, having repeatedly successfully shifted blame elsewhere. By blocking the mandate, giving the appearance of conflict, and taking the political fall, the Supreme Court is serving as a junior partner in the Biden Administration’s continued policy of administering mass suffering and death.

Caroline Grueskin

The Court’s view that COVID-19 “is a risk that occurs in many workplaces” but “not an occupational hazard in most,” will significantly limit OSHA’s ability to protect people from workplace exposure. In addition to being unable to mandate vaccines, the agency is probably barred from requiring other interventions—such as ventilation, masks, or social distancing—in lower risk workplaces, such as offices or retail shops. This is troubling because enforceable rules are an important way for OSHA to communicate standards and ensure compliance with reasonable safety measures.

But perhaps more deeply concerning is the Court’s implication that certain employers have no “general duty” to protect their workers from COVID-19. One of the most important features of the Act, the General Duty Clause, puts a burden on employers to protect their workers from recognized hazards—which, until now, included COVID-19. Where the virus presents only the “universal risk,” it now may not.

This ignores the fundamental difference between risks people take on voluntarily and risks they must accept to make a living. Moreover, it suggests that an employer could be careless with respect to their workers’ exposure to COVID-19. Consider, for example, an employer who asks or permits employees to return to an office while they are still contagious. OSHA may be able to rebut this argument, at least where an employer obviously endangers workers or specific workplace conditions create a high risk. But, in general, the Court has placed the risk on employees.

The Court could have focused narrowly on the novel vaccine requirement. Instead, it needlessly suggested millions of workers are beyond OSHA’s reach.

Charlotte Garden

Should it matter why OSHA’s emergency standard came about? As Michael Dorf has argued, it seems that at least some of the justices in the majority thought the answer was “yes.” That is, they may have voted against OSHA’s emergency standard out of a sense that it was motivated by public health—not just workplace health— considerations.

That line of reasoning reminds me of the (now-repudiated) decision in Hammer v. Dagenhart. In Hammer, the Court struck down a federal law that prohibited the shipment in interstate commerce of goods produced with child labor. The law was an invalid exercise of Congress’s commerce power, the Court reasoned, because Congress wasn’t really concerned that these goods would harm interstate commerce—instead, it had another goal: “The act in its effect does not regulate transportation among the States, but aims to standardize the ages at which children may be employed in mining and manufacturing within the States.”

The Court later repudiated Hammer, ruling in United States v. Darby that there is no congressional frame-of-mind exception to Congress’s power to regulate interstate commerce. Instead, the Court focused only on what Congress actually did—there, prohibit the shipment in interstate commerce of goods produced in violation of the FLSA’s wage-and-hour requirements.

Of course, there are occasions where pretext matters—for example, when the pretextual reason hides an impermissible one, such as racial animus. Likewise, pretext can matter in administrative law if it means an agency has not sufficiently justified an action. But neither of those scenarios is implicated by the likelihood that OSHA (or the Biden administration more generally) hoped that a vaccinate-or-test rule that operated in workplaces would ultimately slow the transmission of COVID both inside and outside of workplaces. Instead, the Court’s apparent concern with frame-of-mind suggests the possible revival of another Lochner-era deregulatory mechanism.

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