Covid-19 and the Delegation Doctrine: Absent Irrational Rules, Judges Should Stand Down

 By Eric Segall

On November 5, 2021, The Occupational Safety and Health Administration (OSHA) issued an emergency order  to protect the health of employees by mitigating the spread of the historically unprecedented Covid-19 virus. The order requires that employees of companies with over 100 workers either be vaccinated or wear a protective face covering and take weekly tests but also provides employers various methods to choose the best policy implementing those requirements.

The day after the rule was issued, the U.S. Court of Appeals for the Fifth Circuit, of course, stayed the emergency order pending judicial review, and it renewed that decision in an opinion issued on November 12. After similar cases were filed around the country, they were all consolidated into one piece of litigation pursuant to several federal rules of civil procedure, and then by lottery the cases were assigned to the Sixth Circuit. Yesterday, a panel upheld the rule with two judges in the majority (Stranch & Gibbons) and one judge dissenting (Larsen). The Sixth Circuit, thankfully, dissolved the stay of the rule entered by the Fifth Circuit.

The main arguments in the litigation, and the ones that divided the majority and the dissent, were whether OSHA had the proper or lawful delegated authority to issue its emergency order and whether if so Congress could constitutionally give it that authority. At the outset, I concede that reasonable people can disagree over the pros and cons of our huge administrative state, whether Congress should be issuing broad delegations of power to the vast federal bureaucracy, and whether Congress wrongfully avoids responsibility for difficult political decisions by doing so. 

On the other hand, given our large country and interconnected economy it is quite unreasonable to expect Congress to be able to legislate in detail with regard to climate change, new technologies, threats to interstate commerce, and, of course, once-a century pandemics. The appropriate balance is a hard one and where the sweet spot is between needed and proper delegations and improper abdications of authority is not easy to find.

But what should be easy is the question of what role unelected federal judges should play in sorting out the proper balance between and among the various issues and tensions described in the above paragraphs. Absent irrational or obviously unreasonable choices by Congress or federal agencies, judges should stand down. That deference was displayed by the Sixth Circuit majority and ignored by both Judge Larsen in dissent and the Fifth Circuit.

According to the Sixth Circuit decision, OSHA is empowered by law to “assure safe and healthful working conditions for the nation’s work force and to preserve the nation’s human resources.” The agency is to accomplish  this mission “by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems... and to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce.” There is a standard notice and comment procedure for OSHA rules that allows the public input into the process before a rule issued in normal times becomes final.

During an emergency, OSHA “shall” issue an “emergency temporary standard” that takes “immediate effect.” These temporary standards do not displace notice-and-comment requirements and OSHA must proceed over the course of six months with the procedures of a normal OSHA standard. After six months,  the Secretary must then promulgate either the same standard or a revised standard in light of the notice-and-comment process.  Before issuing an emergency order, OSHA must determine: (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that an “emergency standard is necessary to protect employees from such danger.” 

The majority had little difficulty finding that OSHA's Covid-19 response easily met these standards. There is a lot of administrative law jargon in the decision but the bottom line is that the majority found that Covid-19 was an emergency as defined by the statute and that OSHA's rules, whether right or wrong, good or bad, were a reasonable response to that emergency. OSHA had regulated infectious diseases in the past and its responsibilities have never been limited to “hard hats and safety goggles. OSHA has wide discretion to form and implement the best possible solution to ensure the health and safety of all workers, and has historically exercised that discretion."

OSHA did not require all employees to be vaccinated, allowing for masking and testing instead, and it excluded workers who spend all their time outside. The rule was limited to companies with 100 or more employees. Judge Larsen in dissent took issue with this regime, second guessing and nit picking many of the details. But that judicial oversight is simply not justified by constitutional or statutory text or history. As a matter of policy, it is absurd to suggest that federal judges should be second guessing and then vetoing reasonable decisions by expert federal agencies, especially during an emergency. At all times, Congress can revoke, repeal, and stop such rules from taking effect. 

Both the Fifth Circuit and Judge Larsen relied on something called "the great powers doctrine." Culled together from mere snippets of James Madison's speeches and writings (and ignored by him when he actually became President), other selective historical sources, and a few Supreme Court opinions, this doctrine suggests, according to the Fifth Circuit, that Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” 

This rule is not in the constitutional text, is historically contested by many scholars, has rarely been invoked by the Supreme Court, and is favored mostly by libertarians who object to our large administrative state. This blog post is not the place for a full accounting of the weaknesses of the rule's pedigree or its imprecise contours and potential for wrongful interference by the judiciary into the proper affairs of the other two branches of government. For purposes of OSHA and its emergency rule, it is enough to observe, as the Sixth Circuit did, that OSHA’s issuance of the emergency rule was "not an enormous expansion of its regulatory authority. OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease." The agency "has used vaccination and medical examinations before to contain illness in the workplace." The emergency rule "is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic."

The validity of OSHA's rule as well as other federal and state responses to Covid-19 are likely heading to the Supreme Court where it is at best unclear what reception they will receive. There will be a lot of legal mumbo-jumbo in the forthcoming decisions and battles over proper standards of review and how much and what kind of deference federal agencies should receive. All of that should be unnecessary, however, and I can't say it better than Judge Gibbons in her concurring opinion in the Sixth Circuit case:

Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policymaking responsibilities. This limitation is constitutionally mandated, separating our branch from our political co-branches. '[F]ederal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.' [quoting Chevron, U.S.A., Inc. v. NRDC, Inc.). Beyond constitutional limitations, the work of an agency, often scientific and technical in nature, is outside our expertise.... Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur.

Just so. I only hope other federal judges and the Supreme Court heeds this advice. I am not optimistic.