The Supreme Court’s decision to stay the Labor Department’s “vaccine or test” rule was a significant setback for the agency I once headed. It is also a vivid illustration of the difficulties ahead for President Biden’s aggressive regulatory agenda.
At the heart of the court’s ruling was the conclusion that the Occupational Safety and Health Administration, which is part of the Labor Department, is “limited to regulating ‘work-related dangers,’ ” but Covid-19 “is not an occupational hazard in most” workplaces. The virus is now among the “hazards of daily life,” the court said, encountered at home, schools, sporting events and virtually everywhere else.
And so, while OSHA could regulate the virus where it poses special danger because of particular features of an employer’s job or workplace—a lab where researchers work with the virus, for example, or a plant where employees are “working in particularly crowded or cramped” conditions—regulating the virus in workplaces generally exceeded OSHA’s power.
The court’s ruling will make it harder for the Labor Department to continue the more measured Covid regulatory program it put in place when I was labor secretary. In 2020, the department crafted a comprehensive program to address Covid through detailed guidance to workers and employers, workplace inspections and, where appropriate, enforcement of existing regulations and the “general duty clause” of the OSHA law, which obligates employers to keep the workplace free from “recognized hazards” of “death or serious physical harm.”
I resisted calls to issue a rule invoking the “emergency” authority used in the Biden mandate, for several reasons. I believed that guidance and the agency’s existing inspection and enforcement authority gave us sufficient tools to protect workers from Covid, particularly given that states, locales and most employers were also intensely focused on mitigating that risk. Additionally, experts’ understanding of the virus’s transmission and prevention was constantly changing, so that a rule could quickly become outdated. I also thought rulemaking and the inevitable litigation would divert OSHA’s and employers’ energies from proven means of keeping workers safe and would leave employers and workers uncertain of their obligations for months on end.
Mr. Biden’s decision to push forward with an emergency rule has weakened the legal basis for the program I put in place, which OSHA had largely continued under Labor Secretary
Our approach rested on the view that virtually all employers had an obligation under existing law to address Covid in the workplace. Now the court’s decision limits OSHA’s reach to places where the virus poses “special” danger because of “particular” features of the job or workplace. OSHA will have to proceed more narrowly and cautiously than before its ill-fated rule—a reminder that when an agency stretches its power too far, it can end up with less authority than it had before.
The court’s decision has other, broader lessons on agency overreach that should worry the Biden administration in general. From climate change to labor policy and antitrust, Mr. Biden has ambitious plans for transformative regulatory change. Inevitably, that will involve agencies pursuing objectives for which their authorizing statutes weren’t designed—“work-arounds,” as the White House chief of staff characterized the administration’s vaccine mandates.
The problem for Mr. Biden is that placing constraints on the administrative state—including on “work-arounds”—is a defining concern of the Roberts court. All of President Trump’s appointees are arguably more interested than the justices they replaced in articulating a jurisprudence that constrains federal agencies’ ability to assume responsibilities ordinarily performed by Congress, or by the courts.
In the OSHA decision, this was reflected in the court’s concern with the novelty of what OSHA was doing. It was a “telling indication” of overreach, the court wrote, that never in its 50-year history had OSHA adopted such a “broad public health regulation.”
These words—and similar statements in other recent high-court decisions—should worry agencies looking to make creative uses of old statutes, as in the case of the Federal Trade Commission. A cornerstone of FTC Chair
“competition” agenda is deploying a rule-making power the agency hasn’t used in half a century—which many authorities believe the FTC doesn’t possess at all.
Also in the backdrop to Thursday’s decision was the “major questions doctrine,” an important counterweight to the authority agencies gained under the Court’s 1984 decision in
v. Natural Resources Defense Council. That ruling established that courts should generally defer to agencies’ reasonable interpretations of ambiguous statutes; it expanded agencies’ ability to make and change the law. But the major questions doctrine, which Supreme Court rulings have cited with increasing frequency in the past decade, holds that some decisions are too important to be made without clear authorization by the people’s elected representatives. As the court said in the OSHA case, quoting last summer’s invalidation of the president’s eviction moratorium, “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic or political significance.”
That was the death knell for OSHA’s rule, which significantly expanded OSHA’s reach “without clear congressional authorization.” And it spells trouble for the administration’s plans more generally to exploit ambiguous statutory language to implement big economic or political change—like using financial regulation to curb climate change.
Many have remarked that the president’s legislative agenda is too big for his slim majorities in Congress. The OSHA ruling shows how the president’s regulatory ambition suffers a similar problem: Often, rules now in the works will prove too grandiose for the courts that eventually will review them.
Mr. Scalia is an employment and regulatory lawyer. He served as U.S. labor secretary, 2019-21.
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