Average Joe SCOTUS: National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration

In a case, which wins the award for being the longest named SCOTUS case of the last decade or so, we’re talking about COVID. Remember that shit?

In order to minimize the risk to American workers during the COVID pandemic, the Occupational Safety & Health Administration (OSHA), back in November of 2021, issued a mandate that any company with over 100 employees either require employees to get vaccinated, or wear a mask when at work.

While OSHA isn’t the CDC, they felt it was within their jurisdiction, in order to make sure people were safe at work, from anti-vaccine anti-mask zealots.

The National Federation of Independent Business (NFIB) and others filed suit, arguing that this was not within OSHA’s rights to make such a regulation.

Because it was a pandemic issue, and the petitioner’s were seeking a stay of the order that would go into effect in a matter of days, SCOTUS decided to fast track this shit, and hear arguments much faster than normal.

The NFIB’s arguments are basically that this shit would cost employers a shit ton of money. Not that they would be forced to buy the masks or the vaccines, but instead, there are a good number of their employees who are anti-vaccine anti-mask zealots who’d rather take their toys, go home, and quit like the little anti-science crybabies they are, than protect their fellow coworkers.

Actual Photo of Anti-Mask Anti-Vaccine Person

I know it might seem anti-libertarian on the face of it to attack these anti-vaccine folks, but this is the Logical Libertarian, not the Zealous Libertarian, or Anarchist Pseudo-Libertarian. Vaccines fucking work, and any dangers that have been uncovered through the years were not only minimal, but highly overshadowed by their benefits. Any argument to the contrary is either born of ignorance or malice.

On this page, we promote science and libertarianism combined in a logical approach. I’m not interested in hosting an anarchist site where I call myself libertarian just because I know most people hate anarchy as much as they hate communism.

As I see it, the difference between anarchy and libertarianism, is libertarianism promotes the idea that government should exist to protect people’s rights. So while it is fair to debate the merits of all this, and others are welcome to differ in opinion, vaccines aren’t just about saving the vaccinated person’s life, it’s about protecting others they come in contact with. While I do oppose hard vaccine mandates, where everyone must get one no matter what, I think conditional mandates like this are arguably protecting people’s right to life, while still being optional.

A good analogy would be, if you want to drive a car on our roads, you have to agree not to be drunk when doing so. Few libertarians are promoting getting rid of all drunk driving laws. So arguing, “if you want to work for an employer, you have to make a reasonable effort not to put other employees at risk from sickness and death,” isn’t a hugely different proposal.

Obviously, disagreement and fair counter-arguments are always welcome. It just needs to be acknowledged that it’s a fair argument, and there are also fair arguments opposing it. Zealots who can’t accept this, are invited to cordially eat my entire ass.

Apologies for the distraction, I’ll get back to this case in front of SCOTUS now.

Scott Keller, counsel for the NFIB opened with an argument that basically hit two main points. One, OSHA has never regulated vaccines before, and that this rule, effectively makes businesses a “de-facto public health agency” as he put it.

But shortly after his opening arguments, Justice Kagan was having none of his argument. She chimed in with this:

Mr. Keller, I don’t understand the point. Whatever “necessary” means, whether it’s necessary and proper or whether it’s something more than that, why isn’t this necessary to abate a grave risk? This is a pandemic in which nearly a million people have died.

It is by far the greatest public health danger that this country has faced in the last century.

More and more people are dying every day.

More and more people are getting sick every day.

I don’t mean to be dramatic here.

I’m just sort of stating facts. And this is the policy that is most geared to stopping all this.

There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So, you know, whatever “necessary” means, whatever “grave” means, why isn’t this necessary and grave?

Justice Elena Kagan

One of the arguments presented by both counselors for the petitioners was that OSHA generally regulates issues that are specific dangers to specific businesses.

For instance, if your business operates a forklift in a warehouse, they’ll regulate how that forklift is to be used to ensure some dumb fuck operating the forklift doesn’t run over some idiot worker not paying attention when a heavy vehicle is driving around next to them.

Or maybe you’re a roofer, OSHA might regulate you wear a safety harness so your dumb ass doesn’t fall 50 feet to your fucking death because you’re clumsy as fuck, and lost your footing. Shit like that.

But this rule, seems to be a nationwide sweeping rule that applies to everyone, everywhere, all the time. Basically, their beef is that if you were the type of worker who is essentially on your own, maybe driving around in a car by yourself, or out on some location where you’re not around other people as a necessary requirement of your job, a vaccine or mask in your situation isn’t really protecting anyone. So then it becomes an overreach.

The second counsel for the petitioners, Benjamin Flowers, hit this point home with his opening argument:

Mr. Chief Justice, and may it please the Court: OSHA typically identifies a workplace danger and then regulates it.

But, here, the President decided to regulate a danger and then told OSHA to find a work-related basis for doing so.

This resulted in the vaccine mandate, a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate. So sweeping a rule is not necessary to protect employees from a grave danger as the emergency provision requires.

And I want to be clear that states share OSHA’s desire to bring this pandemic to a close, but the agency cannot pursue that laudable goal unlawfully. I welcome your questions.

Benjamin Flowers

He went on to argue, that COVID isn’t a workplace danger, it’s just a danger that exists in the world right now. While he didn’t say it, I think he’s effectively arguing this is the purview of the CDC to regulate, or congress to pass a law, not OSHA.

Using my forklift example, he’s basically arguing that’s not a danger I face at home. It’s specifically a workplace risk. But COVID is a danger I face everywhere. Ergo, not a workplace risk. Ergo, not the purview of OSHA.

But Justice Kagan was having none of this noise. She passionately fired back:

Well, why not? I mean, the combination of lots of people all going in to one indoor space and having to deal with each other for eight hours, ten hours, however many hours a day, in those settings, the combination of the environment and the people that are in that environment create a risk, I would think.

I mean, tell me if I’m wrong about this.

I would think that workplace risk is about the greatest least controllable risk with respect to COVID that any person has. You know, everything else a person can control.

You can go to the baseball game or not go to the baseball game.

You can decide who to go to the baseball game with.

But you can’t do any of that in workplaces.

You have to be there.

You have to be there for eight hours a day.

You have to be there in the exact environment that the workplace is set up with. And you have to be there with a bunch of people you don’t know and who might be completely irresponsible. Where else do people have a greater risk than at the workplace?

One question I have in all this, is while counsel made some pretty creative arguments to the distinction of workplace risk, versus general risk, at no point did anyone arguing for NFIB point out that OSHA has such a distinction in law prohibiting it from creating a regulation to lessen a general risk that also occurs in the workplace.

Whenever I have such questions, there’s a part of me that recognizes, these counselors and justices have forgotten more about law than I’ll ever know, and that surely, they thought of this, it was somehow addressed, and my feeble legal mind just doesn’t understand.

But then there’s another part of me that thinks, “Well, I’m not an idiot. Sometimes, even really talented people make dumb mistakes or oversights. Maybe I’m on to something.” So then I get this notion that if only I were in the halls of the Supreme Court, and could just raise my hand and chime in, I’d be a hero.

Moving on…

Justice Breyer also chimed in, with a well-researched refutation of counsel’s argument, that people who aren’t at risk get no exception:

What this says, what I mean, my law clerks have been busy beavers on this case, I promise you, and what they have on this issue is that there are exceptions here.

There aren’t exceptions business by business, but there are exceptions, those who work from home, alone, or substantially outdoors, or those who can show that their conditions, practices, means, methods, operations, or processes make their workplaces as safe and healthful as the ETS can obtain a variance, okay? So they did make some distinctions.

Not industry by industry, but my question really is, that I’d like to turn this to, is a stay.

You heard what I asked.

Justice Stephen Breyer

I mean, you know, 750 million new cases yesterday or close to that is a lot. I don’t mean to be facetious. But that’s why I said I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations.

And the only answer that was given was a lot of people will quit. Well, OSHA considered that.

My wonderful law clerk has 61475, 63422, 61466, 61 474 and 475, those are pages.

I don’t think you should read all 61,000, but, nonetheless, there are at least five or 10 pages where they went into this, and they said, in our view, hmm, yeah, that’s right, some people may quit, maybe 3 percent.

But more may quit when they discover they have to work together with unvaccinated others because that means they may get the disease.

Okay? And more will quit because they’ll be — maybe die or maybe they’ll be in the hospital or maybe they’ll be sick and have to stay home for two weeks.

So they did the pros and cons. So I’d like to take Justice Kagan’s questions, which I think I share on the merits, and just ask you, are you asking us both still to issue a stay today, tomorrow, Monday, and why, if you are?

It’s also worth noting, that while many painted this as a vaccine mandate, there was the option to wear a mask, if one chose not to vaccinate, making it not a mandate.

During the argument from OSHA, Justice Roberts expressed concern that the president is essentially side-stepping congressional action, by getting government agencies to regulate on multiple fronts. He didn’t mention the president directly, so that’s just my interpretation of it.

Justice John Roberts

The point being, congress passes laws, agencies pass regulations. Getting congress to pass a law is a bitch. But if the president wants an agency, or in this case, multiple agencies to create a regulation, which essentially carries the same weight as a law, they just tell them to do fucking do it or get canned. In so doing, it’s basically the president making law, instead of congress.

Justice Alito, also looking for some distinction between this, and other previous OSHA actions asked this:

On the issue of whether you’re trying to squeeze an elephant into a mouse hole and the question of whether this is fundamentally different from anything that OSHA has ever done before, I want to see if it might be fundamentally different in at least two respects and get your answer to the question. Most OSHA regulations, all of the ones with which I’m familiar, affect employees when they are on the job but not when they are not on the job.

And this affects employees all the time.

If you’re vaccinated while you’re on the job, you’re vaccinated when you’re not on the job. Isn’t this different from anything OSHA has done before in that respect?

Justice Samuel Alito
Counsel was quick to correct Justice Alito, that there is a mask option, making it not a permanent action, necessarily.

While Justice Alito went out of his way to agree that the vaccines were safe and effective, he wanted to address that there is some level of risk in a vaccine. So one contention he raised, was asking whether OSHA had imposed any other rules where the person was asked to do something that carried with it additional risk.

While he was directing it at counsel, Justice Sotomayor could not resist an awkward argument between them, where they both were acting like they were talking to counsel for OSHA, but they were clearly trying to tell the other, “Stop being such a fucking idiot, you asshole.”

Sorry, I know this is getting long-winded, but there’s some interesting shit in here. One thing I think that’s worth learning; you’ll hear reference to the “Major questions doctrine.” As I mentioned earlier, Justice Robert’s expressed concern that maybe the president was acting as a lawmaker, by using regulatory agencies to make things happen. The “major questions doctrine” is basically at the heart of what Justice Roberts was asking. If there’s something that is a major question the people should likely decide, allowing unelected agencies to regulate it, is not appropriate, and instead should be a law passed by the people’s representatives instead.

Since laws and regulations have essentially the same power, it’s at least a distinction as to when a law should be passed, versus a regulation be written. A bigger distinction of course being that an agency is generally specialized, and lawmakers aren’t specialists. So for instance, if we’re talking about health issues, lawmakers probably wouldn’t know how to write a law about specific healthcare actions, and instead would leave that up to the FDA or CDC. Congress merely grants those agencies the power to do those things.

Justice Gorsuch, seemingly concerned about Justice Roberts’ point about circumventing congress fairly pointed out:

So my question with respect to the major questions doctrine is this: We accept that it’s not our role to decide public health questions, but it is our important job to decide who should decide those questions. I think we all agree on that.

And, here, our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments. Now you argue we should not consider the major questions doctrine unless and until we find a statutory ambiguity.

I understand that.

Justice Neil Gorsuch

But let’s — let’s say the Court does find such an ambiguity.

I know you’ll contest the premise, but let’s just work on it. If — if there is an ambiguity, why isn’t this a major question that, therefore, belongs to the people’s representatives of the states and in the halls of Congress, given that the statute at issue here is, as the Chief Justice pointed out, 50 years old, doesn’t address this question. The rule affects, I believe, we’re told, 80 million people, and the government reserves the right to extend it to every private business in the country. Traditionally, states have had the responsibility for overseeing vaccination mandates.

I rejected a challenge to one just the other day from New Mexico. Congress has had a year to act on the question of vaccine mandates already.

As the Chief Justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act. The risks imposed here are not unilateral.

There are risks to those who choose not to be vaccinated that they’re trying to avoid sometimes, as you discussed with Justice Alito and conceded to him. Traditionally, OSHA has had rules that affect workplace hazards that are unique to the workplace and don’t involve hazards that affect individuals 24 hours a day. So that’s kind of the general tick list we have before us, and I’d just like you to address, again, the question, assuming the statute’s ambiguous, why isn’t this a major question that normally under our Constitution would reserve — be reserved for the people’s representatives in the states in the first instance and in the halls of Congress in the second?

Elizabeth Prelogar, for OSHA, while acknowledging the premise of the question, simply argued that OSHA’s mission statement, given to it by congress, is protecting workers in the workplace, which is what this regulation does.

If there were any argument presented that seemed to really make the case against this regulation, was when Justice Gorsuch asked about why they don’t have similar rules for the flu.

Elizabeth Prelogar

Counsel Prolegar’s answer was fair, but presents basically a subjectivity issue. Influenza can be deadly, but at the time, COVID deaths were far higher than any recent influenza mortality rates. She also pointed out that influenza is seasonal and consistent, whereas COVID was new.

In retrospect, the evidence now suggests COVID will be seasonal and consistent, too. But, essentially, she was drawing a line that hadn’t been established, that the severity of the disease gives them cause to act.

Weirdly, I’m surprised she didn’t just respond that COVID was officially a pandemic at the time, influenza was not. But maybe she wasn’t ready for that question, and didn’t think of that answer. Or, maybe I’m a fucking idiot.

Anyway, in a per curium opinion (that just means it wasn’t authored by any one justice, and it was a pretty brief opinion), that was drawn along partisan lines, the right-wing majority sided with the NFIB. They said that such a large and sweeping rule, should either be delegated by congress or written by congress. This was simply too significant for OSHA to do on its own.

They wrote:

Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.

So there you have it. OSHA gets smacked down, and congress and the president have a better understanding of their roles and the jobs they must do, and must not do going forward

I applaud OSHA for trying their level best, but frankly, it’s hard to disagree with this opinion. While this particular regulation may have seemed like a good thing and saved a significant number of lives, these same powers, if not reigned in, could and would be used for things any one of us may not agree with in the future.

Hear oral arguments or read about the case here at Oyez, or here at SCOTUSBlog.


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