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What the Supreme Court’s OSHA Decision Means

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What the Supreme Court’s OSHA Decision Means

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The Supreme Court’s decision to suspend the Labor Department’s “vaccine or test” rule was a significant setback for the agency I once led. It is also a stark illustration of the difficulties ahead for President Biden’s aggressive regulatory agenda.

At the heart of the court’s decision was the finding that the Occupational Safety and Health Administration, part of the Department of Labor, is “limited to regulating ‘work related hazards,'” but Covid -19″ is not a professional hazard in most workplaces. The virus has become part of the “risks of everyday life”, the court said, encountered at home, at school, at sporting events and virtually everywhere else.

And so, while OSHA might regulate the virus where it poses a particular hazard due to particular characteristics of an employer’s job or workplace – a lab where researchers work with the virus, for example, or a factory where employees “work in particularly crowded or cramped spaces” conditions – regulating the virus in workplaces was generally beyond the power of OSHA.

The court’s decision will make it harder for the Department of Labor to continue the more measured Covid regulatory agenda it put in place when I was Secretary of Labor. In 2020, the department developed a comprehensive program to tackle Covid through detailed guidance to workers and employers, workplace inspections and, where appropriate, enforcement of existing regulations and the “clause General Duty” of OSHA, which requires employers to keep the workplace free of “recognized hazards” of “death or serious bodily injury”.

I have resisted calls to release a rule invoking the “emergency” authority used in the Biden mandate, for several reasons. I thought the guidance and the agency’s existing inspection and enforcement authority gave us enough tools to protect workers from Covid, especially as states, localities and most employers were also intensely focused on mitigating this risk. Additionally, expert understanding of virus transmission and prevention was constantly evolving, so a rule could quickly become outdated. I also believed that rulemaking and the inevitable litigation would divert the energies of OSHA and employers from proven ways to keep workers safe and leave employers and workers uncertain of their obligations for months.

Mr. Biden’s decision to move forward with an emergency rule weakened the legal basis for the program I set up, which OSHA had largely continued under Labor Secretary Marty Walsh. . Our approach was based on the idea that virtually all employers had an obligation under applicable law to address Covid in the workplace. Now, the court’s decision limits OSHA’s scope to places where the virus poses a “particular” hazard due to “particular” characteristics of the job or workplace. OSHA will have to proceed more narrowly and cautiously than before its ill-fated rule — a reminder that when an agency stretches its power too far, it can end up with less authority than it had before.

The court’s decision has other broader lessons about agency overreach that should worry the Biden administration generally. From climate change to labor policy and antitrust, Mr. Biden has ambitious plans for transformative regulatory change. Inevitably, this will involve agencies pursuing purposes for which their licensing statutes were not designed — “workarounds,” as the White House chief of staff called the administration’s mandates for vaccines.

The problem for Mr. Biden is that imposing constraints on the administrative state – including on “workarounds” – is a defining concern of the Roberts court. All of President Trump’s appointees are arguably more interested than the judges they replaced in articulating case law that limits the ability of federal agencies to carry out responsibilities usually exercised by Congress or the courts.

In OSHA’s decision, this was reflected in the court’s concern about the novelty of what OSHA was doing. It was a “telling indication” of overbreadth, the court wrote, that never in its 50-year history had OSHA adopted such “broad public health regulations.”

These words – and similar statements in other recent High Court decisions – should worry agencies seeking to make creative uses of old laws, as in the case of the Federal Trade Commission. A cornerstone of FTC Chair Lina Khan’s “competition” agenda is to deploy rule-making power the agency hasn’t used in half a century, which many authorities believe that the FTC does not own it at all.

Also against the backdrop of Thursday’s ruling was the “major issues doctrine,” an important counterbalance to the authority gained by the agencies under the Court’s 1984 ruling in

Chevron c. Natural Resources Defense Council. This decision established that courts should generally defer to agencies’ reasonable interpretations of ambiguous laws; it expanded the agencies’ ability to make and change the law. But the major issues doctrine, which Supreme Court cases have cited with increasing frequency over the past decade, holds that some decisions are too important to be made without the clear authorization of the people’s elected representatives. As the court said in the OSHA case, citing last summer’s invalidation of the president’s eviction moratorium, “We expect Congress to speak clearly when authorizing an agency to exercise supervisory powers. ‘great economic or political importance’.

That was the death knell for the OSHA rule, which dramatically expands OSHA’s reach “without clear authorization from Congress.” And more generally, it’s difficult for the administration’s plans to exploit ambiguous legislative language to implement big economic or political changes, like using financial regulation to curb climate change.

Many have pointed out that the president’s legislative agenda is too big for his narrow congressional majorities. The OSHA decision shows how the president’s regulatory ambition suffers from a similar problem: often, the rules currently in the works will prove too grandiose for the courts that will eventually consider them.

Mr. Scalia is a lawyer specializing in labor law and regulation. He served as US Secretary of Labor from 2019 to 2021.

Journal Editorial Report: But do federal agencies have that power absent specific authorization from Congress? Images: AFP/Getty Images Composition: Mark Kelly

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What the Supreme Court’s OSHA Decision Means

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