The Supreme Court’s recent per curium opinion on OSHA’s vaccine-or-test mandate for businesses takes a practical approach to agency power, though the dissent would rather the Court have taken a more practical approach to the pandemic. The majority opinion holds that while OSHA has power to regulate dangers in the workplace, it cannot use the workplace as a proxy for protecting the entire country. We previously opined that Chief Judge Sutton’s dissent was “perhaps the most powerful (and the most narrow) judicial opinion against OSHA’s ETS,” and the opinion bears that out.

As expected, the Court’s chief complaint about the vaccine-or-test rule is that “OSHA has never before imposed such a mandate” and that Congress did not clearly grant the agency such power. The Court quotes Judge Sutton’s dissent that “[t]his is ‘no everyday exercise of federal power,’” and follows his analysis by moving directly to the major questions doctrine. Citing Alabama Assn. of Realtors v. Department of Health and Human Services (2021), the Court states that Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” It explains that the mandate is not a workplace safety standard but rather a broad public health measure and that “[a]lthough COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” In rejecting the dissent’s contention that the OSHA mandate is comparable to a fire or sanitation regulation imposed by the agency, the Court cites Judge Sutton again: “A vaccination, after all, ‘cannot be undone at the end of the workday.’”

As suggested during oral argument, the Court’s opinion appears to allow OSHA to issue regulations that specifically target COVID-related dangers that are heightened in a particular workplace or in a particular job. (The Court, of course, essentially makes good on this promise by allowing the CMS mandate to stay intact.) Interestingly, the opinion declines to balance the equities after concluding that the challengers are likely to succeed on the merits, holding that weighing “such tradeoffs” is not the Court’s role “[i]n our system of government.”

Justice Gorsuch’s concurrence, joined by Justices Thomas and Alito, also follows Judge Sutton by explicitly asking “who decides?” a framing Judge Sutton has popularized in federalism cases, see, e.g., DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) and in his new book (which borrows the question for its title). Justice Gorsuch also gives Judge Sutton his fourth cite in the case, and explains “[w]hy … the major questions doctrine matter[s].” The doctrine “guard[s] against unintentional, oblique, or otherwise unlikely delegations of the legislative power.” These justices believe that Congress did not intend for OSHA to make such sweeping policies through mandates.

In dissent, Justices Breyer, Sotomayor, and Kagan powerfully highlight the “grave dangers” COVID-19 poses to Americans and American workers. They note that it “has by now killed almost 1 million Americans and hospitalized almost 4 million.” The mandate therefore “falls within the core of the agency’s mission: to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.” The dissent also acknowledges that “[u]nderlying everything else in this dispute is a single, simple question: ‘Who decides[?]’” To the dissent, the answer should be the agency “with expertise in workplace health and safety, acting as Congress and the Present authorized”—not the Supreme Court, which is“lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes.”