Read this Essay (lawfareblog.com)
The Biden administration’s pandemic response strategy suffered a setback on Jan. 13. The Supreme Court handed down a rushed decision that stayed a workplace safety rule issued by the Occupational Safety and Health Administration (OSHA) in November 2021. For the short time that it was in effect, the vaccinate-or-test rule required employers with 100 or more employees to ensure their employees were either vaccinated against the coronavirus or regularly tested and masked at work. This rule, which applied to large employers in the United States, was one part of a multipronged strategy to address the ongoing pandemic, which the administration has framed as both a public health crisis and a national security threat.
The rule now goes back to the U.S. Court of Appeals for the Sixth Circuit, which will consider the case while the rule is stayed. Although the case was before the Supreme Court only on the procedural issue of whether the rule should be stayed, the court’s opinion delved into one of the core issues in the case: the question of authority. Inquiries about the extent of an agency’s authority are not new, but the court’s opinion suggests its increased skepticism about the breadth of agency authority. While views range considerably about whether this particular OSHA rule was within the bounds of the statute, the administration is on notice that the court may decline to go along even when there is a credible argument that the statute supports the agency’s action.