The SCOTUS decision yesterday striking down OSHA’s vaccine mandate is based on some of the most sophomoric reasoning the Court has issued in a long time. And I am aware of what Court I’m talking about. The gist of the argument is that OSHA is only authorized to enact safety rules that protect someone’s at their place of occupation. But this is a public health rule because Covid also occurs outside the workplace, ergo etc.
But of course work is one of the main places that you can get Covid, as Justin Feldman documents (he also shows that the predominance of workplace transmission helps to explain the disproportionate impact on non-white folks). The fact that vaccination also protects you outside of work is nice but not the point. I have a ladder at home. I don’t know the OSHA rules, but I bet there’s some covering the construction and use of ladders at work. If those rules cause ladder manufacturers to make a safer product, that also protects me at home. But it’s a little hard to explain how that standard doesn’t meet the statutory mandate of protecting people who use ladders in their occupation (the dissent cites several more such examples). What’s wrong with positive externalities?
The Court opines:
“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
Well, duh. We haven’t had a global pandemic like Covid during the existence of OSHA! In the meantime, if you read court opinions very often, you learn to expect documentation of bold factual assertions like that one. But there is no footnote explaining how there is no causal relation between the threat of Covid and the workplace. That’s because a credible such footnote cannot be written. As the dissent points out, “because the disease spreads in shared indoor spaces, it presents heightened dangers in most workplaces,” citing OSHA’s documentation of the risks and reminding that majority that Courts are supposed to be deferential in cases like this. Congress even allocated money to OSHA to address workplace hazards (dissent, p. 8). In short,
“The agency backed up its conclusions with hundreds of reports of workplace COVID–19 outbreaks—not just in cheek-by-jowl settings like factory assembly lines, but in retail stores, restaurants, medical facilities, construction areas, and standard offices.” (dissent, p. 9)
We also know that SCOTUS doesn’t even believe its own rhetoric about workplace risk: the justices are all vaccinated, all but Gorsuch wore masks to oral arguments on this case (prompting Sotomayor to participate from her chambers), and court policy is that arguing attorneys have to take a Covid test the day before, and argue remotely if positive. Attorneys are also supposed to wear KN95 masks when in the Courtroom except when actually speaking. One of the attorneys arguing against the mandate even had to appear remotely because he had Covid! So workplace safety is apparently a thing that SCOTUS has heard of – it’s just not one they deem fit to extend to workers who have less control over their environment.
In the meantime, Gorsuch took the time to write a concurrence tediously saying that states might have authority for public health, and that the nondelegation doctrine “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” Perhaps now is the time to remember that SCOTUS is unelected, and seems to enjoy its own antidemocratic powers quite a bit: this the Court that ordered the Biden administration to reinstate the Remain in Mexico policy, even though that’s foreign policy, traditionally the province of the democratically elected executive (remember, the Court kept trying to greenlight Trump’s border wall with the fake border Caravan emergency, even though Congress specifically withheld funding for it). This is also the same Justice Gorsuch who was appointed by the minoritarian Senate at the invitation of Donald Trump because Mitch McConnell refused to consider the nomination of the person who was democratically-elected president at the time of the vacancy. (Gorsuch also pontificates about the “major questions doctrine,” which is supposed intervene when an “agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment.” But since the Court made no effort to prove that a vaccination mandate would not improve workplace safety and instead tries to show that the mandate improved safety everywhere, this rhetoric should be filed under the ‘I’m going to cite myself in anti-regulatory rulings in the future” dept).
There is one bit of hope in the opinion, in this paragraph:
“That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).” (slip op, p. 7)
The Biden administration should immediately institute revised standards mandating vaccination in places with disproportionately high Covid rates. There’s been research on that; as CNBC reports of the study:
“The top five occupations that had higher than a 50% mortality rate increase during the pandemic include cooks, line workers in warehouses, agricultural workers, bakers and construction laborers.”
Feldman links to some other high risk groups. But the Biden administration needs to immediately call the Court’s bluff. Will SCOTUS reverse itself here and go full-on Lochner and declare that the baking profession is unregulable?
Marx had lots of words for how the capitalist class treated the lives of workers as disposable. Engels had the better expression: “social murder.” How many workers did the right-wing majority in SCOTUS kill yesterday? “OSHA estimated that in six months the emergency standard would save over 6,500 lives and prevent over 250,000 hospitalizations” (dissent, p. 11), and that number was derived before Omicron emerged. As the dissent sums it up:
“Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?”
There’s definitely a separation of powers problem emerging, but it’s not the one the Court’s conservatives want you to think about.
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