Neil Gorsuch
Neil Gorsuch attends the first day of his Supreme Court confirmation hearing before the Senate Judiciary Committee in the Hart Senate Office Building on Capitol Hill March 20, 2017 in Washington, DC. (Olivier Douliery / Sipa via AP Images)

On January 13, the Supreme Court handed down two contrasting decisions about federal COVID-19 policy. Because of shifting alliances among the justices, the center-left bloc won one and the hard-right majority won the second. In Biden v. Missouri, a five-justice majority allowed the secretary of health and human services to continue requiring COVID vaccinations for health care workers in facilities that participate in Medicare and Medicaid. In National Federation of Independent Business v. Department of Labor, however, a six-justice majority blocked enforcement of an Occupational Safety and Health Administration regulation requiring large private employers to adopt a vaccine-or-mask rule for their workers. In response to the latter decision, OSHA on January 25 abandoned its attempt to impose the rule as a temporary emergency standard, now treating it instead as only a proposed rule on which the agency will presumably consider public comment before its possible reemergence.

In allowing a block on the OSHA standard, the Court may have passed up the opportunity to prevent as many as 250,000 hospitalizations over the next six months, not to mention as many as 6,500 deaths. It did so in the face of a health care system suffering from unprecedented strain, threatening needed care for many. Just as ominously, the Court’s handling of the OSHA standard portends the possibility of devastating judicial interference with the federal government’s capacity to protect Americans’ health and welfare more generally.

The difference between the two COVID opinions runs deeper than a difference in bottom line. It highlights the difference between a Court regarding its judicial review function as significant but limited, on the one hand, and a Court that thinks itself better equipped than the elected branches to control public policy making on the other. The unsigned 5–4 opinion approving the health care worker rule is an utterly conventional administrative law analysis, even though it drew dissenting votes from Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett. In contrast, the unsigned 6–3 opinion keeping the OSHA standard in limbo is a mishmash of result-oriented reasoning little anchored to the text of the statute it purports to interpret. 

Even worse is the Gorsuch concurrence, joined by Thomas and Alito, which is based more on a philosophical antipathy to the regulatory state than a sound view of constitutional text or history. Taken together, the anti-regulatory opinions in both cases, anchored by the votes of Thomas, Alito, Gorsuch, and Barrett, manifest deep sources of instability in contemporary right-wing constitutional thought—tensions that betray the weakness of these justices’ claims for the objectivity of their methods. The very arbitrariness of those methods can have a worrisome, chilling effect on regulatory agencies charged with protecting the public interest. An agency might not prioritize the most serious problems within its statutory portfolio lest a right-wing Supreme Court capriciously decide that the agency’s authorizing language anticipates those challenges with too little specificity.

When federal courts review the regulations issued by administrative agencies, three questions arise most frequently. The first—the focus of an Alito dissent in the health workers case—is whether the agency followed required procedures in issuing the challenged regulation. When a new agency rule would impose legal obligations on the public, the agency typically must publish the rule first in proposed form and then receive public comments on its proposal, typically for months. The agency promulgates its final rule only after reacting to the public comments. 

The secretary of health and human services issued the health worker vaccine mandate, however, as what is called an “interim final rule.” When an agency “for good cause” finds it imperative that a rule go into effect without delay, the agency is allowed to issue that rule in binding form first and take public comments after. Before the rule becomes a “final, final rule,” the agency must still analyze and react to the issues raised by public comment. The comment process may well lead the agency to amend what it had promulgated in “interim” form. 

The majority in the HHS case upheld the secretary’s finding “that accelerated promulgation of the rule in advance of the winter flu season would significantly reduce COVID–19 infections, hospitalizations, and deaths.” For five justices—including Chief Justice John Roberts and Justice Brett Kavanaugh—saving lives and protecting health were sufficient cause for agency haste. Alito’s dissent, however, argued that the HHS secretary lacked the required good cause to use an expedited process. He contended that the department’s considerable period of deliberation prior to issuing the interim rule contradicted the assertion of an emergency. 

A second typical administrative law question—which the majority answered negatively in the OSHA case—is whether the regulation in question falls, “as a matter of law,” within the rule-making authority that Congress provided to the agency. In cases like this, “as a matter of law” means something like “in principle.” Imagine, for example, asking your best friend to choose some “entertainment” for your Sunday afternoon together, and your friend chooses carpentry. Given your tastes, carpentry might or might not be fun for you, but the first question you would be entitled to ask is, “In principle, does ‘carpentry’ fall within the scope of the word ‘entertainment’?” If carpentry does not fall within the category of “entertainment,” then you could reasonably object that your friend made an unauthorized choice. Carpentry would be ruled out as a matter of law.

Six justices in the OSHA case concluded that the agency’s vaccinate-or-mask requirement (which the majority frames as a “vaccine mandate”) fails this test of agency authorization. In their judgment, demanding a vaccinate-or-mask policy of every employer of 100 or more persons went beyond the category of “occupational safety and health standards” authorized by the federal Occupational Safety and Health Act. 

To fully appreciate the weakness of this argument, let’s describe the OSHA rule with different terms. Think of the rule not as a “vaccine mandate” but as a “testing and masking mandate”—that is, as compelling employers to impose testing and masking requirements on their employees while at work, excluding (if the employer so chooses) workers who are vaccinated. Rhetorically, the rule appears directly tied to OSHA’s traditional focus on the workplace, but, in operation, it incentivizes vaccination in just the same way as the overturned rule.

The majority offered three reasons for finding that OSHA lacked authority. First, given the “vast economic and political significance” of the OSHA policy, the agency could not point to language in the Occupational Safety and Health Act sufficiently clear in the justices’ view to provide authority for so broad a regulation. (In a few cases, the Court has referred to this rule as the “major questions doctrine,” though only Gorsuch’s separate concurrence uses that phrase.) Second, the majority argued, the regulation crossed a supposed line between regulating “workplace” safety and “occupational” hazards, which is permissible, and regulations addressing “public health more generally,” which would go beyond OSHA’s authority. Third, they said, the standard was “strikingly unlike the workplace regulations that OSHA has typically imposed,” because vaccine protection cannot be turned off when an employee leaves the workplace. 

Consider the OSHA majority’s reasons in reverse order. Whether or not a safety measure in the workplace can “be undone at the end of the workday” has nothing to do with whether that safety measure protects the health and safety of a worker while at work. It is true that immunization requires entry into the body in a way that, for example, mandatory training in the safe handling of toxic materials does not. The antigens that promote antibody formation do not stop working when an employee clocks out. But well-trained workers also do not forget their training when they leave their workplace. They do not have to be retrained each day on the job. Should they have occasion to handle toxic materials both at home and at work, their training would protect them in both places. Vaccination may involve more sensitive issues of bodily autonomy than training, but the persistence of immunity is beside the point. (And, of course, the shift of two votes produced an opinion in the HHS case upholding mandatory vaccination for health care workers as a “straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the [HHS] Secretary to impose.”)

Second, the idea that a regulation is unauthorized because it is unusual is likewise irrelevant, but also silly. OSHA was created in 1970. Since that time, American workers have not experienced anything like the COVID pandemic. Under the OSHA majority’s reasoning, the nation’s workplace safety agency lacks the power to address workplace safety threats that are unexpected. Indeed, because of the major questions doctrine, the greater the unexpected danger, the more likely a federal court would be to block rules protecting against it. This is especially perverse because empowering the government to respond more nimbly than Congress can to unanticipated challenges is often a reason why Congress delegates policy-making authority to expert agencies in the first place. 

As for the majority’s first reason—too little textual clarity to support the OSHA mandate—that doctrine immediately exposes the instability of the conservative justices’ preferred method of reading statutes. They call that method “textualism.” That principle ordinarily directs judges to interpret a statute “in accord with the ordinary public meaning of its terms at the time of its enactment,” and to ignore evidence outside the text when the “original public meaning” is clear.

Yet the majority in the OSHA case performs no close reading at all of the relevant statutory text. That text was where the Court’s liberal dissenters started their analysis. They pointed out that a regulation aimed at protecting employees from the coronavirus fits squarely within the statutory text allowing OSHA to promulgate “emergency temporary standard[s].” That subsection requires OSHA to issue an emergency standard if “necessary” to protect workers from a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” This provision doesn’t say “and that includes COVID-19,” but it comes pretty close. Moreover, as the lower court had observed, the Occupational Safety and Health Act provides that none of its provisions “shall be deemed to authorize or require medical examination, immunization, or treatment, for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.” If the language says that immunizations can’t be required of a small subset of workers, surely that implies that it can be required of other workers. Otherwise, why would Congress have specifically provided a religious exemption from mandatory “immunization”?

Instead of attending to these arguments, the conservative justices essentially abandoned their oft-proclaimed devotion to textual fastidiousness with a different approach. A cynic (or a realist) might summarize that approach thusly: “If we, the unelected judiciary, think a specific policy matter too controversial to be assigned to the executive branch for resolution without ‘unmistakable legislative support,’ we can set aside even the agency’s most straightforward interpretation of its own statute.” 

This brings us to the third critical administrative law question agencies face: Even if a challenged regulation represents a kind of rule authorized in principle, is the actual regulation reasonable given the facts and analyses on which the agency based its judgment? The Occupational Safety and Health Act poses the issue as whether the rule was based on “substantial evidence.” The basic inquiry, familiar in many administrative contexts, is: Taking everything relevant into account, has the agency reasonably found that its regulations will accomplish the job Congress assigned to it? 

It is on this third step that one might imagine regulatory skeptics pinning a plausible objection to the OSHA rule. They might have said that, even if OSHA could in principle require an economy-wide policy of the kind it issued, the agency had not adequately explained its actual rule. On what basis, they might have asked, could the agency defend limiting its approach solely to employers of a hundred or more persons? And why, they might have probed, had OSHA not tailored its requirements more precisely to “the particular features of an employee’s job or workplace”? The majority in the OSHA case conceded that “targeted regulations are plainly permissible.” So the justices could have coherently (whether or not persuasively) put their objection as a challenge, not to the agency’s statutory authority but to the reasonableness of its specific use of it. Of course, an opinion questioning the reasonableness of OSHA’s standard, as opposed to its legality in the abstract, would have had to meet the dissenters’ argument that “OSHA amply established COVID-19 poses special risks in most workplaces, across the country and across industries.” The majority’s refusal to address the question of reasonableness reveals what is likely the justices’ bottom line—a skepticism. or even antipathy, to ambitious federal regulation, regardless of whether it’s needed.

The desire to weaken federal regulatory capacity is spelled out most explicitly in Gorsuch’s concurrence in the OSHA case. (Thomas and Alito signed onto his statement, as well.) Gorsuch argues that the major questions approach to statutory interpretation is, like the “non-delegation doctrine,” aimed at ensuring “democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” But these three justices are firm adherents of “unitary executive theory”—a doctrine that the president is entitled to control all administrative agency activity because the president, in this view, is “the most democratic and politically accountable official in Government.” If the president is the country’s most politically accountable official in government and if the president can control how agencies exercise their policy-making powers, how can delegations endanger democracy? And how is democratic legitimacy vindicated when unelected judges decide that statutory language enacted by elected officials—language plainly sufficient to authorize the agency action in question—is just not specific enough under some we’re-just-not-feeling-it standard of clarity? (It has been plausibly speculated that the OSHA majority might have regarded OSHA’s defense of its rule as pretext for what, in actuality, was a presidential commitment simply to get as many Americans as possible vaccinated. Again, however, for right-wing enthusiasts of presidential policy control, the explicitness of a presidential impetus for agency action would seem to strengthen rather than weaken the case for deferring to the agency’s follow-through.)

Currently fashionable conservative jurisprudence responds to this problem with a second strategy, which I would call “separation of powers formalism.” The basic claim is that the “legislative power” constitutionally vested in Congress and the “executive power” assigned to the president are well-defined, non-overlapping categories. Congress, under this view, may not give agencies powers of policy choice so broad that administrative rule making becomes “legislative,” rather than “executive” activity. So broad a license for making policy would be an abdication of legislative power.

Specifically, in reviewing OSHA’s emergency standard, Gorsuch argues that “if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.” In other words, if OSHA were allowed to adopt its rule under the statute’s current language, the resulting agency discretion would move from permissibly “executive” to impermissibly “legislative.” Yet even the late Justice Antonin Scalia—hardly a fan of regulation—was dubious about judicial enforcement of any such boundary: 

Once it is conceded, as it must be, that no statute can be entirely precise, and that some judgments, even some judgments involving policy considerations, must be left to the officers executing the law and to the judges applying it, the debate over unconstitutional delegation becomes a debate not over a point of principle but over a question of degree.

Exhibiting an attitude of judicial modesty nowhere evident in Gorsuch’s opinion, Scalia observed,

Since Congress is no less endowed with common sense than we are, and better equipped to inform itself of the “necessities” of government; and since the factors bearing upon those necessities are both multifarious and (in the nonpartisan sense) highly political … , it is small wonder that we have almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.

To give federal regulatory power its due, it is important to remember that a fundamental purpose of the 1787 Constitution was creating a national government with adequate capacity to address problems of national scope. The language submitted to the state ratifying conventions was crafted to fulfill a set of objectives on which the delegates assembled in Philadelphia had agreed. One such resolution, adopted unanimously by the delegates present on May 31, 1787, declared that the national legislature ought to be empowered “to legislate in all cases, to which the separate States are incompetent or in which the harmony of the united States may be interrupted by the exercise of individual legislation.” Whether the nature of the pandemic poses such a case may be a tough question. But Congress did not act in any constitutionally suspect way by empowering a federal agency, such as OSHA, to protect workplace health and safety as it has. Likewise, OSHA, acting pursuant to its authorizing statute in seeking to prevent the spread of infection in America’s workplaces, was behaving entirely within the Constitution’s spirit by addressing a virus that is stubbornly oblivious to state boundaries.

The enormity of the pandemic’s scope indeed points to a final troubling feature of the OSHA majority opinion. The specific task facing the Court was not to determine definitively whether the OSHA standard was lawful; the task was to determine whether to stop the rule before deciding that question. In other words, were the parties challenging the standard entitled to a stay that would block its enforcement even before lower courts could give the facts behind the rule full consideration? In deciding that issue, the majority faced two contending assessments of the public interest. The Court wrote, 

We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.

But the majority washed its hands of the debate. It asserted, “It is not our role to weigh such tradeoffs.” 

Yet the law governing applications for emergency stays like this one specifically requires the opposite. A court considering an emergency motion for a stay is supposed to balance the interests involved. As recently as 2017, the Court explained that in exercising its judgment in such a case, “it is ultimately necessary … to balance the equities—to explore the relative harms … , as well as the interests of the public at large.” In dodging that question, the majority casually cut itself loose of established law.

Did the OSHA emergency temporary standard embody the best approach to stopping the spread of COVID in the workplace? No federal court is well equipped to answer that question. The Court should have asked whether OSHA had a sufficient basis in law and fact to implement its standard as a reasonable approach—and then stopped. 

It remains to be seen how OSHA will retool its standard to fall within boundaries the Court’s majority has seemingly approved. It is disconcerting, however, to see on how questionable a basis the Court’s majority was willing to impede the lifesaving task Congress had properly assigned elsewhere.

Peter M. Shane

Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at Ohio State University and a Distinguished Scholar in Residence at the New York University School of Law. His forthcoming book is Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency.