OSHA’s “Blunt Instrument” Is Exactly What America Needs
Why is SCOTUS enabling states to override mask and vaccination protections for over 80 million working people?
During last month’s oral argument before the U.S. Supreme Court, several justices asked some version of — who decides? — when considering the validity of the Occupational Safety and Health Administration’s vaccine-and-test rule. This question, raised repeatedly by several conservative jurists, considers whether a federal agency should have the power to enact such a far-reaching and impactful rule on its citizens. (Namely 84 million American workers.)
There are two layers to this question. One is whether Congress must pronounce its intentions more clearly. The second is whether this should be in the federal government’s purview at all, or left to the states.
As to the first, conservatives on the Supreme Court have their eyes set on dismantling the administrative state — the phenomenon of the executive branch exercising the power to write, finalize, and enforce their own rules — with a particular focus on how and when Congress can delegate rulemaking authority to administrative agencies.
Generally speaking, the Court has granted Congress great leniency to federal agencies designed to promulgate rules that touch on every aspect of the economy, our environment, and workplace standards. But that all was in the past. We know that this conservative iteration of the Supreme Court has little regard for precedent.
The NFIB v. Department of Labor case wasn’t the right one to do this broader dirty work.
Frankly, it is hard to imagine how much clearer Congress could have been in delegating authority to OSHA to protect against this very type of harm. As explained in the 6 to 3 decision with the liberal justices in dissent:
“The Standard falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.”
Many commentators, including Peter Shane, have aptly critiqued the majority and Gorsuch concurrences. Shane argues SCOTUS’ stance:
“is based more on a philosophical antipathy to the regulatory state than a sound view of constitutional text or history…The very arbitrariness of those methods can have a worrisome, chilling effect on regulatory agencies charged with protecting the public interest.”
Ultimately, when it comes to the federal government, the Court decided that Congress had not authorized OSHA to make such a sweeping rule.
The impact of this pronouncement has real ripple effects throughout all layers of our government, which takes us to the second layer of the question of, who decides?
And this part is about federalism — and whether the federal government can intervene at all. Throughout the oral argument, advocates challenging the OSHA rule and justices skeptical of the rule said, essentially, the federal government need not get so involved because the states can do this.
In fact, on at least three occasions very early in the argument, the lawyer for the National Federal of Independent Businesses (which also challenged the Affordable Care Act on grounds that the federal government lacked the power to do something sweeping and important) explicitly expressed this states can do it stance.
The problem with putting this huge responsibility on the states is that many of them are decidedly not acting. Several states are actually blocking others (such as cities and private businesses) from taking steps that the science tells us are the most effective to combat the pandemic: namely, get vaccinated and wear a mask in group settings.
Any rational approach to a pandemic of this scope and impact would involve coordination and leadership from the federal government.
But we’re past the point of political or legal sanity on COVID-19. Instead, we find ourselves in a place where many states are blocking local governments, private businesses, and others from imposing rules that prevent death and hospitalization.
A lesser told story about the invalidation of the OSHA test-and-mandate rule was the crucial work it would do in overriding irrational and dangerous state interference. In many instances, the rule would have significantly moderated a dangerous position by providing legal and political cover to businesses and governments alike seeking to protect their workers amidst the pandemic.
100 Years of State and Local Governments Protecting Public Health
Despite the ubiquity of the term unprecedented, vaccine mandates are not new or unique to COVID-19. Since the 19th century, vaccination mandates implemented by local governments have proved effective interventions to reduce the spread of disease — vaccinations were imposed without voluntary choice by individuals.
In 1905, the Supreme Court upheld the right of local governments to issue vaccine mandates to combat the smallpox epidemic. Writing for the majority, Justice John Marshall Harlan explained:
“[T]he rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”
This decision upheld government authority to pass laws restricting individual liberty, so long as those restrictions were found by the Court to be a reasonable means of achieving or protecting public good. It was a relatively low bar for local governments to pass.
Since then, state and local governments have taken full advantage of this authority. Today, all fifty states plus the District of Columbia mandate diphtheria, tetanus, pertussis, polio, measles, rubella, and chickenpox as a prerequisite to school enrollment.
Some states have moved beyond schools and extended vaccine requirements to the workplace. For example, New York requires all workers in hospitals, nursing homes, and other health care facilities to be immunized against measles and rubella. Rhode Island requires childcare workers to be immunized against several common childhood diseases and receive the annual flu shot.
Without question, state and local governments have an important role to play in combating COVID-19. They are central to our overall public health infrastructure and have been critical in implementing all kinds of measures to combat and mitigate the spread of disease.
So given our nation’s long history with vital — and compulsory — vaccinations, why was federal action still needed here? Because for the first time ever, states have pushed to restrict anyone — the federal government, their own governors, cities and counties, as well as private businesses — from imposing restrictions and preventing their governments from protecting their populations.
The Problem with State Preemption
State preemption of local authority to protect public health has profoundly impacted the ability of local governments to implement a cohesive COVID-19 mitigation policy. Local governments have already endured numerous legal challenges from states to public health policies designed to reduce the spread of COVID-19 and protect underserved and vulnerable populations.
This kind of conflict has played out over business closures, masking, and vaccinations — at every stage of the pandemic and corresponding waves of response.
Municipalities across the nation have adopted COVID-19 mitigation policies that are proven to reduce infection — such as mask mandates — only to have their authority undermined by overreaching state laws. Early in the pandemic, for example, the Mayor of Jackson, Mississippi found himself at odds with the state’s Governor over orders to keep businesses closed.
The Mayor sought to guard against a surge of patients within the city — especially given the vulnerability of certain resident populations — only to be rebuffed by the Governor.
Houston, Texas has faced litigation filed by state officials challenging its authority to require masks in all county government buildings.
The Texan reports that Governor Greg Abbott “exercised near-unchecked authority over the state, its citizens, and their exploits,” lifting most COVID-19 restrictions statewide, and prohibiting local governments from enforcing mask mandates. These efforts have included aggressive legal challenges to local masking requirements as well as business closures.
State officials in Florida and South Carolina have banned mask mandates in schools, and Florida has gone the extra step of threatening direct retaliation against districts that enforce mask mandates, including withdrawing state funding. And then the state made good on that promise — this past September funding was withheld from two Florida school districts that made masks mandatory in classrooms this fall.
At almost every turn, local governments trying to protect their residents have found themselves stymied. In certain situations, their pushback — through the courts or otherwise — has resulted in limited or short-lived victories.
But by and large, states have a great deal of ability to override local decision-making, especially when the state legislatures have taken action. That is why federal intervention is so crucial.
Federal Intervention to Protect Worker Safety
We first saw the federal government’s efforts to override state preemption when the Department of Education’s Civil Rights Office began to send inquiries to states that prevented local schools from requiring masking. (Ed’s engagement impacts worker and student safety as well as educational access.) OSHA’s rule could have been another step in that direction, as OSHA standards significantly impact the workplace conditions for state and local government workers.
Here’s how:
The majority of states have consented to enforce OSHA regulations with respect to state and local government employees by adopting state-specific OSHA plans. Twenty-six states and two federal territories have adopted state plans, which must be, “at least as effective in providing safe and healthful…places of employment” for state and local employees as federal OSHA standards, including emergency temporary standards (ETS).
The remaining states — while not required to adopt standards implementing or exceeding OSHA standards — are also not allowed to create laws that directly conflict with OSHA standards. I.e., states can’t block local governments from enforcing mask mandates or vaccination-or-test regimes if OSHA has implemented such a rule.
Thus, the ETS could have been a critical intervention to stop states from preempting local governments’ ability to protect their communities and workers by imposing vaccination policies. Nearly a dozen cities with vaccination requirements for their employees are located in states that have aggressive anti-vaccine mandate laws.
Several state OSHA plans states — Arizona, Indiana, and Tennessee — have banned vaccine requirements for local government workers, and other states are considering similar bans. The ETS and a subsequent final rule would have required these states to lift their bans and implement the vaccine-or-test requirement for state and local government workers.
A final rule would also preempt the conflicting bans on vaccine mandates enacted by states without state OSHA plans — including Arkansas, Montana, Florida, Georgia, Nebraska, North Dakota, and Texas — because these bans directly conflicted with the vaccination requirements outlined in the ETS.
The Supreme Court’s decision and OSHA’s subsequent abandonment of the ETS have eliminated the possibility of this specific federal override.
A Situation Screaming for Federal Intervention
With the NFIB decision, the Biden administration lost one of its most potent tools in requiring vaccination and is left simply to encourage businesses to mandate such rules voluntarily. While the Court may have left the door open for some standards in some industries, especially those hardest hit by COVID (such poultry and meatpacking), OSHA’s pathway forward is far more limited and its ability to override abusive state preemption laws is seriously curtailed.
Through civil rights statutes, federal enforcement agencies may be able to exert leverage in certain circumstances, such as the Department of Education is trying in the K-12 space. Other theories may emerge as well through the requirements of federal spending programs. For example, on the same day as NFIB, the Supreme Court upheld a vaccine-or-test requirement for the recipients of Medicaid and Medicare funds.
But where we are left in the question of who decides — at least when it comes to COVID vaccination requirements — is that states are empowered to block their local governments and private businesses from imposing life-saving requirements no matter how clear the data and the science may be.
It is a scenario screaming for federal intervention, but the Supreme Court has decided that the federal government is rather limited in its authority to get involved at all. It is a win for the virus, and a harrowing development for America.
