Last year, the Biden administration issued a vaccine-or-test requirement to protect millions of Americans from the omnipresent risk of contracting, transmitting, and/or dying from COVID-19. On Thursday, the Supreme Court’s conservative justices blocked this rule from taking effect, reasoning that any workplace safety rule they determine to be—and this is a term of art—“too big a deal” is illegal as a result.
As Hannah Mullen wrote for Balls & Strikes last week, the federal Occupational Health and Safety Administration has the power to issue “emergency temporary standards” to protect employees from a “grave danger” posed by exposure to “physically harmful” “new hazards.” The Biden administration, cognizant of the fact that many people have jobs and go to workplaces, invoked this power to write a rule that would require large employers to ensure that their employees either get vaccinated against COVID-19 or are tested weekly.
For a normal person who has spent two years living through a global crisis that has killed some 840,000 Americans and counting, this might feel like a reasonable, proportionate response. In an unsigned opinion from which the three liberal justices dissented, the Court’s conservatives made clear that they feel differently. “This is no everyday exercise of government power,” they write. “It is instead a significant encroachment into the lives—and health—of a vast number of employees.” The fact that the COVID-19 pandemic has also been a “significant encroachment” into the “lives and health” of a “vast number” of people, and that an effective policy response will necessarily reflect that reality, seems not to have occurred to the gigantic brains who enjoy life tenure on the nation’s highest court.
The crux of the opinion’s reasoning is that COVID-19 “a risk that occurs in many workplaces,” but not an “occupational hazard” that is, in the conservative justices’ view, within the scope of OSHA’s authority to regulate. The rule, they conclude, therefore “takes on the character of a general public health measure,” not an “occupational safety or health standard.”
The purported distinction here—between deadly hazards at the workplace and deadly hazards that are, in the sole discretion of nine elite lawyers whose offices are closed to the public, unique to the workplace—is more or less one invented for the purposes of this opinion. It would also come as news to anyone who has contracted COVID-19 at work over the past two years, and who could perhaps have avoided doing so if the economic imperative to pay rent didn’t require them to get breathed on by their colleagues for 40 hours a week.
In a concurring opinion, Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito made clear that they would go even further to ensure that workplaces remain hotbeds of disease transmission. All three justices are superfans of the “major questions doctrine,” which holds that Congress has to be especially, super-duper clear about an agency’s authority to make rules about anything the Court deems “major,” and the “nondelegation doctrine,” which is the idea that Congress can’t transfer its lawmaking power to other branches of government. Conservatives have been diligently pushing these theories in an effort to bring the basic tasks of modern government to a grinding halt. Neither appears anywhere in the sacred text of the Constitution, but that pesky detail has never stopped self-described originalists from solemnly invoking them whenever they find it convenient.
The vaccine-or-test standard, Gorsuch and company argue, actually fails both tests. In other words, even if existing federal law did allow OSHA to write this rule, that law would be an unconstitutional delegation of legislative authority to the executive branch. Left unstated is the real reason for their enthusiasm: By creating a veto power over any agency rules the Court disagrees with, a robust “nondelegation doctrine” would allow this six-justice conservative supermajority to grab as much power as it wants, from whoever it likes, in perpetuity.
The tiny sliver of good news from Thursday is that the Court upheld a separate, narrower COVID-19-adjacent rule from the Biden administration: one that requires vaccination for most healthcare facility workers. Yet even this modest effort to prevent doctors and nurses from infecting their patients with a deadly virus earned only five votes: Chief Justice John Roberts, Justice Brett Kavanaugh, and the three liberals. In dissent, Thomas, Alito, Gorsuch, and Justice Amy Coney Barrett bemoaned the mandatory imposition of an “unwanted medical procedure,” echoing the language of anti-vaxxers everywhere who treat a three-second shot administered by the CVS pharmacy tech as if Joe Biden himself were coming to their homes to perform compulsory lobotomies with a dull kitchen knife.
From a Court dominated by nihilistic reactionaries, Thursday’s results were not a surprise. But they do function as a grim reminder of how insulated they are from the real-world consequences of their actions. All the justices are vaccinated, and know their colleagues are vaccinated. They wrote these opinions from the comfort of a secure building that requires masks and testing of everyone else who crosses the threshold. Under the circumstances, their workplace is probably as safe as any workplace can be these days. Everyone else, though? Everyone else is on their own.