The Supreme Court has spoken: the Occupational Health and Safety Administration cannot impose a nationwide vaccine mandate. In November, OSHA—two years into the pandemic and one year after vaccines were authorized—invoked a temporary emergency provision to require 84 million workers receive a COVID vaccine, or else impossibly find and fund their own weekly testing and wear a mask. The Court said in today’s ruling that OSHA’s authority empowers it “to set workplace safety standards, not broad public health measures.”
The ruling is correct. OSHA was created in 1970 to require that employers manage atypical risks in their workplaces, like cotton dust or carcinogens. Never before has OSHA asserted an authority to govern risks, like the flu or crime, that happen at work, as they happen in life. Congress created the Centers for Disease Control and Prevention to deal with public health. And notably, Congress did not give CDC the authority to impose a vaccine. Trust me, the CDC would have done it by now if it thought it could.
Whether you find it spectacularly pointless to be vaccinated against a disease you’ve already had, or whether you’re concerned vaccine holdouts will threaten your community, the question of what a federal agency can force you to do, merely because you work, is a major one, for a few reasons.
First, today’s ruling lends support to the idea that Congress needs to speak clearly before agencies can decide “major questions,” like whether millions of Americans need to be vaccinated. That’s a good thing. Today, the issue might be vaccines. But tomorrow, some agency may claim a climate emergency prohibiting air travel. And the next day, some agency may claim a social justice emergency increasing the minimum wage to $30. These sorts of nationwide policies should not be in the hands of an unaccountable agency, and definitely not an agency that has nothing to do with the topic at issue, like public health here.
Second, today’s ruling interprets the law, rather than imposing a policy preference. This is excellent news, because no one needs five Ivy League lawyers setting policy for the nation. In the OSHA case, the government and the dissent emphasized that, without the mandate, many lives will be lost (and, as is now infamous, Justice Sotomayor asked what is to become of the 100,000 children in critical care, a “wildly inaccurate” number). It’s always tempting for Justices to find a way to achieve the best public policy. Saving lives, who doesn’t love it? (Of course, that skips over the reality that businesses will lose workers and fail, and countless employees will become unemployed and depressed.) But the Supreme Court focused on the right question, “What does the law allow?” While today, you may lament that the Supreme Court didn’t pick your favorite policy, you have a city government and you have a state government that can impose a mandate—an even stricter one than OSHA created. This leaves policymaking up to you. When the Supreme Court takes policy making into its own hands, your voice has been squashed.
Note: In a separate capacity, May appeared on the briefs in this case.