The Supreme Court significantly hobbled—but did not obliterate—President Joe Biden’s efforts to protect Americans from COVID in the face of congressional inaction. By a 6–3 vote, the justices blocked his vaccinate-or-test mandate for large employers, accusing the administration of exceeding its authority. But by a 5–4 vote, the court upheld the administration’s vaccine mandate for health care workers, a decision that will compel more than 10 million people to get the jab. This split doubleheader is a crushing defeat for Biden’s efforts to curb the pandemic by protecting American workers from catching COVID in the workplace. SCOTUS’s decision is not, however, a knockout blow to the administrative state. The Republican-appointed justices may yet enfeeble the executive branch’s ability to implement federal law. But a majority of them declined to seize on these cases as their vehicle.
By far the more important case, National Federation of Independent Business v. Department of Labor involves an “emergency temporary standard” issued by the Occupational Safety and Health Administration. This rule required employers with 100 or more workers to give their staff a choice: either get the COVID-19 vaccine or test weekly and mask in the office. The policy would have covered roughly 84 million people. To justify this mandate, OSHA drew on a federal law that allows the agency to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” A coalition of red states filed a lawsuit to halt OSHA’s mandate, and by a 6–3 vote, the Supreme Court took their side.
SCOTUS’s unsigned majority opinion rests on several dubious claims. The court declared that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” So even though COVID is undoubtedly a “grave danger” and a “new hazard” to workers, this broad language is not enough, because it does not “plainly authorize” the mandate. Why not? The majority invented a distinction between hazards that occur solely in the workplace and hazards that occur in and out of the workplace. Because the pandemic exists outside the workplace, it is not the kind of “grave danger” envisioned by the statute, and “falls outside OSHA’s sphere of expertise.” The majority also raised the “anti-novelty principle,” stating: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind.”
Notice something unusual about this analysis? The dissenters certainly did: It is utterly untethered to the plain text of the law, which obviously encompasses OSHA’s rule. In a rare joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan shredded this anti-textual approach to statutory interpretation. By dismantling OSHA’s authority over hazards found in and out of the workplace, they wrote, the majority imposed “a limit found no place in the governing statute.” This limit is not even supported by history: 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.
If that weren’t enough, OSHA put forth uncontested evidence that COVID–19 “poses special risks in most workplaces, across the country and across industries.” The virus “spreads more widely in workplaces than in other venues because more people spend more time together there,” the dissenters noted. OSHA “backed up its conclusions with hundreds of reports of workplace COVID-19 outbreaks.” And it issued a rule designed to protect workers from these kinds of superspreader events. By “overturning that action,” the dissenters wrote, the majority “substitutes judicial diktat for reasoned policymaking.” They concluded:
When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.
If you squint, you can see two silver linings in today’s decision. First, the court left the door open to a more limited workplace mandate that applies to “particularly crowded or cramped environments.” Second, the majority did not use this case to neuter the executive branch’s ability to respond to new challenges under existing statutes. The plaintiffs urged the court to deploy the “major questions” and “nondelegation” doctrines—two precepts that would abolish federal agencies’ authority to issue regulations absent the most explicit and detailed instruction from Congress. Taken to their extreme, these doctrines would grind government to a halt. In a concurrence, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Sam Alito, endorsed their application to OSHA’s mandate. But their conservative colleagues declined to lob this bomb at the Biden administration, choosing a narrower (though still alarming) path to halt the policy.
Weirdly, Thursday’s other decision, Biden v. Louisiana, feels like it emerged from a completely different, far saner court. This time, by a 5–4 vote, the majority upheld a vaccine mandate imposed by the Department of Health and Human Services on health care facilities that receive funding from Medicare or Medicaid. This rule, which includes medical and religious exemptions, requires staff at these facilities to get vaccinated against COVID-19 (with no testing opt-out) and affects about 10 million employees.
Chief Justice John Roberts, joined by Justice Brett Kavanaugh, sided with the three liberals to greenlight the mandate. (Thomas, Alito, and Gorsuch issued a radical dissent along with Justice Amy Coney Barrett, whose nihilistic vote bodes poorly for the federal government’s continued ability to administer federal programs without arbitrary judicial intrusions.) In another unsigned majority opinion, the court held that HHS’s rule “fits neatly within the language of the statute” that allowed the agency to protect the “health and safety” of patients at these care facilities. The majority elaborated: “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.” And it pointed out that “healthcare workers and public health organizations overwhelmingly support the Secretary’s rule.”
You know what other rule health care workers and public health organizations overwhelmingly support? OSHA’s vaccinate-or-test mandate for large employers. Yet Roberts and Kavanaugh halted that policy anyway. This discrepancy highlights the Calvinball nature of both decisions. Reading (barely) between the lines, it’s evident that Roberts and Kavanaugh think the health care mandate is perfectly reasonable while the OSHA mandate is not. Both opinions, frankly, seem to start from that presumption and work backward. Yet the statutory language is blazingly clear in both cases. It’s hard to believe that the divided outcome results from anything other than two justices’ personal sense of how far, exactly, the government can go to rein in the pandemic.
In 2022, the Supreme Court serves as the nation’s most powerful policymaking institution. It would be much easier to contain COVID if we acknowledged that the court’s decisions rest on not law but on some imprecise admixture of politics, ideology, and personal preferences. If Biden sat down with Roberts and Kavanaugh and asked them what pandemic policies they are comfortable with, we could skip over the performative litigation and get some real work done. Instead, we must pretend as if SCOTUS is drawing on some ancient legal principles to police the boundaries between Congress and the executive. Nothing of the sort is actually happening, and in Thursday’s decisions, the justices barely feigned otherwise.
For now, the administrative state survives another day. But millions of workers are stripped of their lone protection against a superspreader workplace, and the Supreme Court scores yet another victory in its battle against self-governance.