by Michael C. Dorf
Two days ago marked what would have been the 93rd birthday of the Rev. Dr. Martin Luther King, Jr. Today is the national holiday designated to commemorate his birth and honor his work. In past years, my co-bloggers and I have sometimes taken the occasion of MLK Day to reflect on racial justice (e.g., here) or other, too-frequently overlooked, aspects of Dr. King's legacy, including his anti-war and anti-poverty activism. I strongly support the call by members of the King family and other civil rights leaders to use today's commemoration to demand voting rights legislation essential to protecting what remains of democracy in America.
That said, although I discuss racial bias in policing below, today's essay is not principally about Dr. King's work. What is it about? I want to offer a hypothesis to explain the Supreme Court ruling on Thursday rejecting the OSHA rule requiring employers with 100 or more employees to require workers to be vaccinated or to submit to regular testing and wear masks. Although my Verdict column on Friday discussed the case, it did so primarily to contextualize my contention that Justice Gorsuch's decision to go unmasked on the bench called into question his ability to judge the issues in the case (and the accompanying Medicare/Medicaid case) with an open mind.
My hypothesis is that the OSHA ruling reflects a judgment by the majority of the Court that President Biden and his administration were using their power under OSHA pretextually.
Before laying out and analyzing the pretext theory, I hasten to add that--as I say in the title of today's essay--my goal is not to justify the OSHA ruling, which I think is unjustifiable. I explain below why the pretext argument fails, but there is, in addition, a wholly separate reason why the Court is wrong.
In response to the completely credible estimate by OSHA that implementation of its rule would "save over 6,500 lives and prevent hundreds of thousands of hospitalizations," the Court responds that "it is not our role to weigh such tradeoffs" between, on one hand, saving lives and promoting worker health, and, on the other hand, protecting employers against economic loss and the loss of workers who choose to quit rather than get vaccinated or submit to testing and masking.
However, as Justice Breyer (joined by Justices Sotomayor and Kagan) observed in Part IV of his dissent, of course it's the Court's job to weigh tradeoffs, given the procedural posture of the case. The plaintiffs (technically "applicants" in SCOTUS) sought a stay of the rule. Under well-established principles of the law of remedies, they are only entitled to such relief if, as Justice Breyer put it, "the balance of harms and the public interest support" that result. To strike a balance, one must weigh tradeoffs. Or, as Mark Lemley trenchantly put the point in a persuasive Twitter thread, weighing tradeoffs "is literally their ONLY job in deciding whether" to grant the stay.
Accordingly, even if one thought that the administration's legal authority for the rule were shaky, the decision to stay it--rather than to allow a challenge to it in the usual course--would be wrong.
But the legal authority wasn't shaky. The essence of the Court's argument boils down to this: A federal statute empowers OSHA to make rules that govern the workplace; COVID spread is a risk everywhere, not just in the workplace; therefore, COVID spread is not a workplace health risk (except perhaps in workplaces that are especially risky). As the government's brief and Justice Breyer's dissent observe, however, nothing in the statutes says OSHA can regulate workplace hazards only if they are unique to or especially elevated in the workplace. Asbestos is found in many homes. That does not prevent OSHA from requiring asbestos mitigation in workplaces. So too, houses catch fire. Yet OSHA can regulate fire safety in workplaces. And anyway, even if there were some requirement that OSHA focus on risks that are heightened in the workplace, as Justice Breyer observes (citing extensive evidence compiled by OSHA), "COVID-19 spreads more widely in workplaces than in other venues because more people spend more time together there."
Whenever a decision is poorly reasoned, one is tempted to search for some alternative explanation for it. Here--and in most cases--the obvious explanation is likely the best one: although all of the Justices are vaccinated and boosted, vaccine (and mask) mandates have been politicized to the point that conservative jurists are inclined to reflexively question them. My Verdict column points to Justice Gorsuch's bare face as a political signal. In addition, Justice Barrett cheerily participated in a superspreader event in which then-President Trump announced that he was nominating her to her current seat. So ideological opposition or at least skepticism towards public health measures likely provides the real driver behind the Court's ruling.
Still, Chief Justice Roberts and Justice Kavanaugh joined the Democratic appointees to sustain the Medicare/Medicaid mandate, so I want to indulge the hypothesis that they (and perhaps even some of the other Republican appointees) were acting in good faith in the OSHA case. Is there some explanation for the ruling that falls outside the four corners of the opinion?
To my mind, the best candidate is pretext. President Biden has a policy goal of getting as much of the U.S. population as possible vaccinated. A freestanding national vaccine mandate would require action by Congress and even then would be highly vulnerable to challenge along the lines that the individual mandate of the Affordable Care Act was challenged. With the change in Court personnel since NFIB v. Sebelius in 2012, it's not clear that such a statute would be upheld even if structured as a rule requiring vaccination in lieu of higher taxes. In any event, in the absence of authority simply to mandate vaccination across the board, the administration used what authority it had to stitch together maximal coverage. Some of that authority is clear. For example, the administration acts in a proprietary rather than regulatory capacity with respect to federal employees. For Roberts and Kavanaugh, at least, federal funding power and the history of vaccination requirements also sufficed to cover health care workers in the Medicare/Medicaid case. But for them (and the other Republican appointees), the OSHA rule was a bridge too far. The administration was using its power to set workplace health and safety rules as a pretext for trying to simply maximize general population vaccination rates.
To be clear, I think the factual statements in the foregoing paragraph are true. The administration wants to save the lives of those estimated 6,500 American workers because they are Americans, not because they are workers. But the question remains whether that fact should doom the OSHA rule. Let's consider a few comparisons.
As a general matter, courts--including SCOTUS--try to avoid pretext analysis because it requires an always-tricky assessment of real motives. To take a leading case, in Whren v. United States, the Court held that if a police officer has probable cause to make an arrest (or reasonable suspicion for a stop), then there is no Fourth Amendment violation, even if the officer's real reason for the arrest (or stop) would not satisfy the Fourth Amendment. The Court even rejected the petitioners' proposed objective test, which would turn on whether a reasonable officer would make the arrest (or stop) under the circumstances. Justice Scalia's unanimous opinion acknowledged that if the arrestees (or persons stopped) could show that the real reason for the arrest (or stop) was race discrimination, they would have a valid equal protection objection, but such a claim would be based on the illicitness of the real reason, rather than the mere fact that the real motive for the officer's action differed from the objective facts offered to justify to justify it under the Fourth Amendment.
Whren is a case about the Fourth Amendment, not administrative law. Because administrative agencies must provide a reasoned explanation for their actions, if an agency offers a pretextual reason for its action, a court will invalidate it as arbitrary and capricious. A leading recent example is Dep't of Commerce v. New York, in which the Court, in an opinion by Chief Justice Roberts, invalidated the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the census. Perhaps out of politeness, the opinion does not expressly say that the proffered justification--to enforce the Voting Rights Act (VRA)--was a pretext; the Chief Justice calls it "a distraction"; but it is clear from the balance of the opinion that the majority deems the VRA rationale pretextual.
So pretext could be a basis for invalidating an agency rule. Does that mean it justifies the result in the OSHA case? No--for at least three reasons.
(1) Neither the per curiam opinion nor Justice Gorsuch's concurrence relies on a conclusion that the OSHA rule is pretextual--a mere cover to get as many Americans vaccinated (regardless of their employment status). To be sure, at one point Justice Gorsuch refers disparagingly to the OSHA rule as a "work-around," but he means that it works around the failure of Congress to act, not that it works around some distinction between workers and the population as a whole. So, ironically, if the real reason for the Court's ruling is that a majority of Justices thought that relying on OSHA was a pretext for trying to vaccinate as many people as possible, then the opinions are themselves pretextual--offering the supposed lack of authority delegated to OSHA as a pretext for invalidating the rule based on its supposed pretextual nature.
(2) Okay, so the Court didn't rely expressly on pretext, but could it have? Here too, the answer is no. In the census case, the Chief Justice's opinion placed little reliance on the fact that Wilbur Ross and Donald Trump wanted a citizenship question because they wanted to suppress the count of Latinos, who tend to vote for Democrats. Instead, the key to finding that VRA enforcement was pretextual (or a "distraction") was the mismatch between the record the Department of Commerce and Department of Justice produced and any serious effort to enforce the VRA. By contrast, there is no such mismatch in the OSHA case. The initial idea for OSHA to require vaccines seems to have come from the White House, but then OSHA carefully studied the relevant evidence to craft a responsive rule (as summarized at pages 5-6 of the slip opinion of Justice Breyer's dissent).
(3) Finally, although administrative law makes pretext relevant because pretextual agency action is action that the agency has not justified with an adequate statement of reasons, surely part of the why the law forbids pretexts is because hidden grounds are often illicit grounds. The petitioners in Whren argued that allowing pretextual arrests (and stops) would license racial bias in policing. The Court rejected their proposed rule but they had at least a moral point.
Police stopping black but not white motorists for broken taillights is illicit. The government asking about citizenship as a means of suppressing the Latino vote is illicit. Can one really say that using what authority the executive branch has to protect American workers from death and disease is illicit simply because the President cares about those workers chiefly as Americans and not simply as workers? A judgment that such a motive is illicit--if that's the judgment underlying the Court's ruling--says more about the Justices making the judgment than about the President and his administration.