The headlines tell us that the Biden administration got a split decision from the Supreme Court this month when it threw out one of the president’s workplace vaccine mandates (for large employers) and upheld another (for health care workers).

But before we call it a tie and move on to the next crisis, it’s worth taking a longer look at the opinions in one of the cases, NFIB v OSHA. They could be telling us where this country is heading.

The court’s six Republican appointees agreed that regulating the spread of COVID in the workplace was beyond the scope of the Occupational Safety and Health Administration as it was conceived in the 1970s. The court expects Congress to “ ‘speak clearly when authorizing an agency to exercise powers of vast economic and political significance,’ ” and Congress hasn’t spoken on this issue at all.

If an agency with the word “health” in its name can’t respond to a public health emergency, then the logic in this opinion poses a threat to our ability to deal with other crises, especially climate change.

Anyone who has been watching Congress over the last few years knows that it’s very hard for it to “say” anything, clearly or not. Partisan politics and narrow majorities mean very little can get done. The last three presidents have resorted to executive action, but like President Biden’s vaccine mandate, they run into a federal judiciary that has been groomed by the conservative legal movement to protect business interests from harm.

The last major environmental law to be passed by Congress was the Clean Air Act, in 1990. How will this Supreme Court view attempts by federal regulators to address climate change, a problem that was not well understood by most lawmakers 32 years ago?


We won’t have to wait long to find out.

Next month the court is going to hear oral arguments in a cluster of cases combined as West Virginia v. EPA, which challenge the Obama administration’s Clean Power Plan. What’s that you say? Barack Obama hasn’t been president for a long time, and the Clean Power Plan never actually went into effect?

You are correct, but the Supreme Court took this case anyway – even though the Biden administration repealed the regulatory scheme – and that might indicate that that at least some of the justices want to “speak clearly” on the topic.

What they might want to say could be found in a concurring opinion in the OSHA case, written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Samuel Alito.

The opinion begins, “The central question we face today is: Who decides?”

Trick question: When it comes to abortion, the right answer for these justices is “the government,” but we quickly find that Gorsuch is going in a different direction here.


He says it’s up to the courts to decide whether an agency is exceeding its authority specifically, even in an emergency where thousands of people are dying every day. “This Court is not a public health authority,” Gorsuch writes. “But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.”

In this case, Gorsuch says, that means state and local governments, including those states like Texas and Florida that have prevented local governments and businesses from instituting basic public health protections like mask requirements during a pandemic.

Since the New Deal, the federal government has relied on regulatory agencies, which issue rules that have the force of law. You can’t expect members of Congress to know how many parts per million of some chemical would be safe in public drinking water, but it can pass a law authorizing scientists in the Environmental Protection Agency to figure it out.

For most of that time, courts have deferred to the interpretation of experts in the agencies if the statutory language is vague. But there could now be a majority on this Supreme Court that would turn that balance on its head and say that judges, who never face the voters, can choose to overrule the experts if the precise matter at hand isn’t spelled out clearly enough for them.

You see where this is headed.

An executive branch that can’t do anything about protecting the environment without specific authorization, while corporate polluters can spend billions of dollars every year to make sure that no laws get passed. The same would be true for the regulation of energy, banking, communications or health care.

With the two democratic branches of the federal government fighting to a draw, the courts become the only branch of government that can do anything.

And this court appears to be OK with that. Are you?

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