When the Supreme Court heard oral arguments last week on whether to block two federal Covid-19-related mandates, Justice Samuel Alito asked the Biden administration if it would accept a brief administrative stay while it considered the case. “Or if we do that, are you going to say, well, they’re causing people to die every day?” he asked Solicitor General Elizabeth Prelogar.
The White House and the Justice Department are unlikely to be so blunt. But others might be. On Thursday, the Supreme Court blocked a federal Covid testing mandate for most large businesses, ruling that the Occupational Safety and Health Administration had likely exceeded the limits of its legal authority when issuing the mandate last June. It simultaneously allowed another mandate, one that required most workers in health care facilities to get vaccinated, to go into effect while litigation continues.
“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court’s six conservative justices declared in an unsigned joint opinion. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
The split outcome for the administration might seem at first glance like a mixed victory or a compromise one, perhaps reflecting a middle-of-the-road path by an image-conscious conservative majority. Nothing could be further from the truth. The court’s conservative justices went out of their way to reconfigure the OSHA mandate into something that it wasn’t, then they kneecapped it for violating standards that they read into federal laws.
Central to its reasoning was that OSHA had issued a “public health” rule instead of a “workplace safety” rule. “The Solicitor General does not dispute that OSHA is limited to regulating ‘work-related dangers,’” the court wrote. “She instead argues that the risk of contracting COVID-19 qualifies as such a danger. We cannot agree. Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
It’s not hard to spot a few flaws in this reasoning. Although you can be theoretically killed by falling debris anywhere at any time, OSHA still requires construction workers to wear hard hats because the likelihood is much greater in those circumstances. And while it’s true that the average adult can get COVID anywhere they encounter other people, it’s fair to say that infection is more likely to occur at workplaces where they mingle with non-family members for eight or more hours each day—especially if they work in an outward-facing job like retail or hospitality—than at home or while they are sleeping.
“Contra the majority, [the OSHA statute] is indifferent to whether a hazard in the workplace is also found elsewhere,” the dissenting justices wrote. “The statute generally charges OSHA with ‘assur[ing] so far as possible … safe and healthful working conditions.’ That provision authorizes regulation to protect employees from all hazards present in the workplace—or, at least, all hazards in part created by conditions there. It does not matter whether those hazards also exist beyond the workplace walls.” In other words, the dissenters argued, the majority read a requirement into the law that wasn’t actually there.
To crush the OSHA mandate, the court also had to turn it into something that it isn’t. The majority concludes that the testing mandate is actually a vaccine mandate. In truth, the mandate itself only actually requires businesses to conduct regular Covid-19 tests of unvaccinated workers and make sure those workers wear masks. Sure, companies might have every incentive then to compel workers to get vaccinated, and the Biden administration’s ultimate goal was to increase vaccination rates. (How nefarious!) But the federal government does not actually force anyone to get a shot—unlike actual vaccine mandates, such as the one for health care workers it simultaneously ruled upon.
The three liberal justices pointed this out in their dissent and during oral arguments. “Counsel, if I might just go back to Justice Alito’s question, there’s no vaccine mandate here, correct?” Justice Sonia Sotomayor asked Solicitor General Elizabeth Prelogar during arguments. “That’s correct,” Prelogar replied. “And that’s what I started with, that, of course, any employer can opt for the mask-and-test option instead.”
But that distinction was ignored by the court’s conservative majority. They conspicuously cited how Biden and the White House described the mandate to the public, apparently prioritizing the administration’s P.R. strategy over how the mandate actually worked. They also repeatedly referred to it as a “vaccine mandate” when possible, even though it isn’t one, and ruled on it as if OSHA had effectively ordered every working-age American to get a vaccine, even though it doesn’t. It almost sounds like a Zen koan: If the Supreme Court rules against a policy that doesn’t actually exist, is the federal government still barred from enforcing it?
More ominous is the basic mindset that girds the conservative justices’ thinking in both cases. In its view, the executive branch cannot use its existing powers imaginatively to address novel matters of public concern. “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,” the majority wrote. “This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
Apparently it is OSHA’s fault that it did not exist during the Spanish flu epidemic of the 1910s and that humanity was lucky enough to avoid another pandemic of this magnitude in the intervening century. In theory, the conservatives’ approach could be seen as bolstering congressional authority at the expense of the executive branch. And in theory, that might be laudable. By leaving it up to Congress, which can barely agree to keep the government afloat or avoid defaulting on the national debt these days, the court achieves right-wing policy goals like dismantling the Voting Rights Act of 1965 while pretending it didn’t swing the ax itself.
The good news, of course, is that five of the justices weren’t willing to strike down the vaccine mandate for health care workers—a real vaccine mandate, that is, not the imagined one in the OSHA case. But four of them would have blocked that, as well. “If Congress had wanted to grant [the Centers for Medicare and Medicaid Service] authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly,” Justice Clarence Thomas wrote for himself and Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett. “It did not.” His reference to “altering the state-federal balance” also gives away the game: Even if Congress did write new laws that explicitly and unequivocally authorized these mandates, the conservatives would strike them down nonetheless.
The real ruling appears to be this: The Biden administration can only try new solutions to new problems if it runs them through a gerrymandered House and a filibuster-friendly Senate first. All those laws that Congress already spent two centuries writing and updating? They don’t count anymore—or, barring that, there are countless new restrictions and limits to be found in their text. Don’t even try to argue that something like Congress’s half-century mandate for OSHA to provide “safe and healthful working conditions” covers a mere nuisance like Covid-19. Oh, and if you’re going to argue a case in person before the Supreme Court this term, please participate remotely if you test positive. The justices don’t want to be exposed to the virus at work.