Halfway through his pained dissent from the Supreme Court’s decision blocking the Biden administration’s workplace Covid vaccine rule, Justice Stephen Breyer made a glancing reference to a now-obscure case from 1981, American Textile Manufacturers Institute v. Donovan. It was one of the court’s first efforts to interpret the 1970 law that created the Occupational Safety and Health Administration.
There surely was nothing casual about Justice Breyer’s citation to this case, once the stuff of headlines. He is the court’s authority on administrative law, a subject he taught for many years at Harvard Law School and that has never been more important, or contested, than it is today, as we see now in the court’s decision on the OSHA vaccine directive. At issue in the 1981 case was the validity of OSHA’s imposition of a new limit on textile workers’ exposure to cotton dust, a workplace hazard that causes serious lung disease. Upholding the rule, the court rejected the industry’s argument that OSHA was required to show that the benefits of any standard outweighed the costs.
The case has a fascinating back story. In the lower court, President Jimmy Carter’s administration had naturally defended its own rule. But when the Supreme Court heard argument in the case, it happened to be on the day after President Ronald Reagan’s first inauguration in January 1981. The new administration had not had time to vet all the government’s positions in pending cases, and a career lawyer in the solicitor general’s office argued in defense of the rule. Then things changed. In April, the newly staffed solicitor general’s office informed the justices that the administration was reconsidering the government’s position. It asked the court to remove the case from the docket, vacate the lower court opinion that had upheld the rule, and send the cost-benefit issue back to OSHA.
For the next two months, there was nothing from the justices but silence, not even an acknowledgment of the administration’s bold request. The court’s next word was its opinion, issued that June 17, upholding the cotton-dust standard and ruling that Congress had not placed a cost-benefit limitation on OSHA’s rule-making authority. Only in a footnote in his majority opinion did Justice William Brennan observe, almost slyly, that “we decline to adopt the suggestion” that the court should turn the case back to the new administration.
That case stands for a time when the Supreme Court was willing to rescue an administrative agency’s authority from the storms of politics. Was that Justice Breyer’s point in citing it? I don’t know, but what jumped off the page to me was the contrast between how the court behaved in 1981 and what happened last Thursday in National Federation of Independent Business v. Department of Labor, when six justices yielded to politics to disable an agency from carrying out its statutory mission to protect the health and safety of the American work force. That is where we are now. That’s how far the court has fallen.
The fact is that this dispute — which, remarkably, found 27 states aligned against the federal government — was never principally about the vaccine. OSHA’s “emergency temporary standard,” under which employers of 100 or more people were to require vaccination or weekly testing, was mainly a target of opportunity. It offered the conservative justices a chance to lay down a marker: that if there is a gap to fill in Congress’s typically broadly worded grant of authority to an administrative agency, it will be the Supreme Court that will fill it, and not the agency. “Placing constraints on the administrative state,” as Eugene Scalia, Justice Antonin Scalia’s son and secretary of labor during the last year of the Trump administration, observed in a Wall Street Journal op-ed in praise of the decision, is “a defining concern of the Roberts court.”
There is a rich irony to the political valence of this project. In the Chevron case in 1984, the court held that judges should defer to an administrative agency’s reasonable interpretation of an ambiguous statute. The decision was unanimous and at first made few waves, as its author, Justice John Paul Stevens, noted in his 2019 memoir, “The Making of a Justice.” But it was to become the most frequently cited opinion Justice Stevens wrote in his 34 years on the court.
Although the decision itself had no particular political spin, it became highly useful to conservatives during the second Reagan administration, when Democrats controlled both houses of Congress and Republicans were thrilled to be able to rely, without judicial interference, on the policymaking discretion of the executive branch agencies, still in Republican hands. They embraced such passages in Justice Stevens’s opinion as this one:
“Judges are not experts in the field, and are not part of either political branch of the government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”
But once Democrats gained back the White House, especially when Republicans controlled one or both houses of Congress, judicial deference to the executive branch lost its appeal among Republicans. Conservative judges and lawyers began to lobby for overturning Chevron. That has not happened formally, but it is hard to read the OSHA decision as anything but a functional overturning. The court’s unsigned opinion in the OSHA case flips that presumption on its head: Because Congress, 52 years ago, had not explicitly empowered OSHA to take the action it took in the face of a public health crisis of historic dimension, the agency was acting outside the boundary of its statutory authority.
Of the six justices in the majority, three pressed the point even further. In a concurring opinion, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote that OSHA had failed to meet the test of something called the “major questions doctrine.” (Justice Gorsuch asserted that the majority as a whole “rightly applies the major questions doctrine,” a baffling claim because the phrase doesn’t appear in the opinion that speaks for all six; the remaining three were Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.)
The major questions doctrine is a recent invention of conservative judges that purports to require explicit congressional authorization for an agency action that resolves “a question of vast national significance,” in Justice Gorsuch’s words. Its obscure origins are frequently ascribed to the court’s decision in 2000 holding that the Food and Drug Administration lacked authority to regulate tobacco products.
True, in that case, Food and Drug Administration v. Brown & Williamson Tobacco Corporation, the court found that the federal Food, Drug and Cosmetic Act did not give the agency the power it was seeking to exercise. And the decision contained the “vast national significance” language that Justice Gorsuch quoted. But it is almost impossible to read the decision as giving birth to a new doctrine of administrative agency disempowerment. For one thing, as the court emphasized, until the case arose in 1995, the F.D.A. had spent decades disavowing authority to regulate tobacco. And Congress had repeatedly refused to give the agency that power. It did not take a new doctrine, under whatever label, for the court to conclude that Congress had to be the one to change the status quo.
In his OSHA opinion, Justice Gorsuch cited a more recent case as endorsing a major questions doctrine. That was the court’s decision in August blocking a Covid-related national eviction moratorium issued by the Centers for Disease Control and Prevention. The court said that “it strains credulity” to believe that the Public Health Service Act, on which the C.D.C. relied, authorized the agency to take such action. Whatever the merits of that conclusion, the eviction moratorium was certainly a reach, and it strains my credulity to find it in any way analogous to OSHA’s effort to protect workers’ safety and health through the vaccine rule that, as Justice Breyer wrote in his dissenting opinion, “lies at the core of OSHA’s authority.”
The decision blocking the OSHA rule, along with a companion decision in which the court refused, by a vote of 5 to 4, to block a vaccine mandate for workers in the health care industry, are not final judgments. The cases now return to their respective courts of appeals for further review. They may return to the Supreme Court, although given that an emergency OSHA rule can last no more than six months (a limiting factor that the OSHA decision obscures), they well may not. But in any event, it’s certain that we have not heard the last of the major questions doctrine or the war on the administrative state.
That Justice Gorsuch, with his penchant for folksy aphorisms, has become the show horse of the court’s far right shouldn’t deflect attention from his less showy but equally determined partner in the campaign to bring down the administrative state, Justice Alito.
Among the more head-snapping moments during the nearly four hours of argument in the two vaccine cases on Jan. 7 came with Justice Alito’s comments in the OSHA argument to Solicitor General Elizabeth Prelogar.
Justice Alito suggested that the vaccine policy was more onerous than other OSHA health measures because employees who accept the vaccine run some personal risk, presumably of a bad reaction. The justice, who like the eight others has received two vaccine doses plus a booster, wanted to have it both ways: to cast a cloud over the vaccine requirement while not being labeled an antivaxxer. “I don’t want to be misunderstood in making this point because I’m not saying the vaccines are unsafe,” he told the solicitor general. Then what was he saying, exactly?
“I don’t want to be misunderstood,” Justice Alito repeated, adding: “I’m sure I will be misunderstood.”
This was Sam Alito as victim, the Alito we have seen in recent public outings, such as his appearance in September at the University of Notre Dame, where he accused critics of the court’s so-called “shadow docket” of portraying the court “as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its way.” He complained about what he said were “unprecedented efforts to intimidate the court or damage it as an independent institution.”
In his opinion dissenting from the court’s decision to permit the vaccine mandate for health care workers, Justice Alito objected that workers were being put “to the choice of their jobs or an irreversible medical treatment.” That was a strange way to characterize a vaccine that demonstrably loses its effectiveness over a period of a few months.
As he put it during the OSHA argument, “I’m sure I will be misunderstood.”
Not to worry, your honor. We understand you perfectly.
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