The Supreme Court’s Covid Vaccine Test

Justices have to decide if they want to let OSHA rewrite the law

WSJ editorial. Excerpts:

"The question is whether OSHA acted within the law as written by Congress. It certainly didn’t as we read the law.

For starters, the Labor Secretary must show that an emergency temporary standard is “necessary” to protect workers from a grave danger—not merely “reasonably necessary or appropriate.” OSHA argues its mandate is effective and useful, but this is irrelevant.

OSHA waited nearly a year after vaccines became available to issue its sweeping rule. The agency also didn’t attempt to calculate the number of Americans who have contracted Covid at work or identify a particular risk of workplace exposure. OSHA claims workplaces in general are risky and unvaccinated workers in general are at high risk. But some workers at some workplaces have a higher risk of contracting the virus and getting severely ill.

“The government’s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64,” Judge Larsen notes. OSHA is obligated by administrative law to consider more tailored alternatives, and it did not.

The Supreme Court’s major questions doctrine says Congress must “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” Congress also cannot delegate sweeping legislative power to regulators.

The agency has only issued 10 emergency temporary standards in 50 years—six were challenged in court and five were struck down—but all involved discrete illnesses in particular industries. “This emergency rule remains a massive expansion of the scope of its authority,” Judge Larsen writes, comparing it to the Centers for Disease Control and Prevention’s eviction moratorium that the Supreme Court struck down."