An After-Action Report on the Newsletter About Justice Gorsuch's Mistake in the Vaccine/Testing Mandate Case

Yes, Justice Gorsuch made a mistake. And yes, it turned out to be tough to explain to the journalists.

Note to subscribers, especially new ones: my posts are not always this full of dense legal detail. Feel free to skim that stuff if it’s not your thing.

So my newsletter Tuesday on Justice Gorsuch’s error in his concurrence in the OSHA vaccine/testing mandate case was picked up by Howard Bashman at How Appealing, by Dan Abrams’s Law & Crime site, and by Josh Blackman at Reason.

Bashman’s “How Appealing” site is widely read in the federal court system, and I think it’s my best chance at getting Justice Gorsuch’s attention and (ideally) some sort of correction. I don’t know if he reads “How Appealing” himself (maybe!) but a lot of law clerks do, including clerks at the Supreme Court. I have a feeling Bashman’s entry could find its way to Justice Gorsuch’s chambers.

The Law & Crime blog unfortunately garbled the analysis — but did spell my name right, which, thanks for that! And I am pleased that they helped spread the word about the error, although I was a little distressed by the way they (I assume inadvertently) mischaracterized the true nature of Justice Gorsuch’s error. Let me take a moment to explain. Start with Law & Crime’s characterization of the problem:

OSHA was arguing in 2020 that it couldn’t pass certain health standards through emergency rulemaking mechanisms. Gorsuch claimed OSHA was arguing that it couldn’t promulgate medical regulations that affect people outside work in any fashion whatsoever. The two are not the same. Gorsuch’s twist (and it’s unclear if it was intentional) is akin to a straw-man logical fallacy when examined closely.

Ironically, despite Gorsuch’s mischaracterization, the 2020 OSHA brief did argue a position that was in line with last week’s majority holding — but it did not argue so broad a position as Gorsuch claimed. Buried in that thicket are distinctions between emergency rulemaking procedures and more common notice-and-comment rulemaking procedures used by administrative agencies daily. OSHA said it could not use the latter to effectuate infectious disease regulations; it ultimately attempted to do so.

Oh, my. Where to start? Well, first of all: the Biden administration’s vaccine/testing mandate, as I noted in my newsletter on Tuesday, was issued as an emergency temporary standard — the very same mechanism that OSHA was resisting in 2020, albeit on a different issue not related to vaccines. So, the distinction between the 2020 case and the recent NFIB decision is not whether the parties are discussing the applicability of emergency powers.

Also, it’s not entirely correct to say that (as Law & Crime claims) that “OSHA was arguing in 2020 that it couldn’t pass certain health standards through emergency rulemaking mechanisms.” To the extent OSHA conceded any lack of authority, it was primarily the authority to issue emergency standards regarding undefined diseases “beyond COVID.” (There is another arguable concession described later in this newsletter.) This goes to the aspect of the 2020 OSHA brief that Justice Gorsuch misunderstood. As I explained on Tuesday in more detail, the quote Justice Gorsuch used in his NFIB concurrence related to a hypothetical effort to force OSHA to issue emergency standards for unknown and undefined categories of infectious disease “beyond COVID.” The agency’s statements disclaiming any authority to issue emergency regulations for such unknown diseases had nothing whatsoever to do with whether those regulations “affect workers’ lives outside the workplace” (as Justice Gorsuch claimed in the NFIB concurrence). Rather, the agency’s statements were directed at the fact that the evidentiary basis to issue emergency regulations cannot exist for unknown and undefined diseases because, by virtue of their being unknown and undefined, the precise nature of their risk to the workplace cannot be assessed.

Law & Crime makes matters worse at the end of the paragraph above, where the article says: “Buried in that thicket are distinctions between emergency rulemaking procedures and more common notice-and-comment rulemaking procedures used by administrative agencies daily. OSHA said it could not use the latter to effectuate infectious disease regulations; it ultimately attempted to do so.”

I have almost no idea what they are talking about here. In its 2020 brief, OSHA explicitly explained that “the Secretary has authority in very limited circumstances to immediately impose an emergency standard without first using the notice-and-comment process.” The requirements for imposing an emergency standard are familiar to anyone who carefully read either my Tuesday newsletter or the Supreme Court opinions. OSHA never said that these procedures cannot be used to issue regulations as to infectious disease. Instead, in the quote that Gorsuch used in his concurrence, OSHA said merely that these standards cannot be met for unknown and undefined classes of disease (or even an undefined class of “known and unknown” diseases). But again, in context, this was a response to a hypothetical scenario in which the AFL-CIO had asked OSHA “to issue a sweeping infectious disease standard beyond COVID-19” (my emphasis). It is simply not the case that “OSHA said it could not use the latter to effectuate infectious disease regulations” anywhere in the brief.

In short, Law & Crime made precisely the error Justice Gorsuch made, by conflating this limited argument geared towards regulations addressing a non-specific class of undefined diseases, on one hand, with the entirely non-equivalent issue of regulation of the specific disease COVID-19, on the other.

Sigh. I said on Tuesday: “This is not the kind of thing that is easy to explain to journalists.” Always trust content from Patterico.

I’d like to say a word about Josh Blackman’s piece at Reason as well. Blackman identified the source of the error. As I had assumed, but had not had the time or energy to track down, the original reference to the 2020 OSHA brief (and the source of the error) came in an amicus brief in the NFIB case. Here’s Blackman:

When I saw this error, my immediate thought was, "Where did Gorsuch get it from?" Based on my research, I could not spot a citation to the 2020 brief in any of the Supreme Court filings. But this citation does appear in the amicus brief filed in the Sixth Circuit by the Michigan House of Representatives and Michigan Senate. The brief, I think, accurately quotes from the Labor Department filings:

As laudable as these public-health goals are, Congress did not authorize OSHA to issue occupational standards, especially emergency temporary standards, designed to eradicate harms outside the workplace. In fact, the Labor Department disclaimed such authority last year in response to a labor union's attempt to force its hand on this very issue, arguing "[t]he OSH Act does not authorize OSHA to issue sweeping health standards to address entire classes of known and unknown infectious diseases on an emergency basis without notice and comment." Dep't of Labor's Response to Emergency Pet. for a Writ of Mandamus, In re Am. Fed'n of Labor & Cong. of Indus. Orgs., No. 20-1158 at 33-34 (D.C. Cir. May 29, 2020).

That quote is accurate, but it provides no support for the assertion that “Congress did not authorize OSHA to issue occupational standards, especially emergency temporary standards, designed to eradicate harms outside the workplace” or that OSHA disclaimed that authority.

I do think Blackman underestimates the significance of the error when he says: “Ultimately, this error was harmless. With or without this citation, the concurrence stands on its own.” As I will explain to paid subscribers (you can become one too!) in my upcoming summary of the vaccine/testing mandate cases, the crux of the issue in the NFIB case was this distinction between regulations of the workplace (which OSHA has authority to issue) and regulations of conditions outside the workplace (where OSHA lacks authority). The central point of the majority opinion, and of Justice Gorsuch’s concurrence, is that OSHA lacks authority to issue a regulation that will “affect workers’ lives outside the workplace.” I think the dissent demolished that contention, which seems daft on its face. After all, if OSHA issues regulations that make it less likely for a worker to lose his fingers at work, those regulations will “affect” the worker at home as well . . . by giving him, inside his home, the use of fingers that he might not otherwise continue to possess but for the OSHA workplace regulation. Ah, but if the agency itself had already disclaimed any authority to issue regulations that will “affect workers’ lives outside the workplace” . . . .then that could be seen as a major concession. And Justice Gorsuch portrayed it as such — but it is a concession that OSHA had not actually made in its 2020 brief.

And that, Josh Blackman, is why this error is important.

On Twitter, I received some kind retweets and very little real pushback. People seem to accept my contention and my analysis that Justice Gorsuch made an error here. I did receive one rather half-hearted effort to partially justify the quote from one law professor, whom I will not name because I did not ask his permission to use it. He conceded in the end that my responses to the arguments were fair, which I took as a concession that the arguments did not really amount to much. Regardless, I’d like to discuss his arguments here anyway, in case anyone read the 2020 OSHA brief and had the same thoughts the professor had.

Specifically, the professor made two points: 1) at page 16 of the 2020 OSHA brief, OSHA made statements discussing COVID as a generalized risk, and 2) at page 19 of the brief, there is a reference to the concept that in certain public spaces open to the public such as stores, the necessary precautions to fully address the pandemic extend beyond OSHA's authority.

Let’s start with the passage at page 16. I’ll put in bold the part the professor found significant:

OSHA’s determination that an ETS is not “necessary” and therefore cannot and should not issue, 29 U.S.C. § 655(c)(1), is “committed to the agency’s expertise in the first instance,” In re Int’l Union, United Mine Workers of Am. (UMWA), 231 F.3d 51, 54 (D.C. Cir. 2000), and should not be disturbed. COVID-19 is a community-wide hazard that is not unique to the workplace. Based on substantial evidence, OSHA determined that an ETS is not necessary both because there are existing OSHA and non-OSHA standards that address COVID-19 and because an ETS would actually be counterproductive.

A footnote says:

For example, a recent CDC report studying meat and poultry facilities concluded that “many workers live in crowded, multigenerational settings and sometimes share transportation to and from work, contributing to increased risk for transmission of COVID-19 outside the facility itself.” CDC, Morbidity and Mortality Weekly Report: COVID-19 Among Workers in Meat and Poultry Processing Facilities – 19 States, April 2020, tinyurl.com/yd2aehgo.

To me, the import of these passages is not that OSHA lacks the authority to regulate regarding COVID because “COVID-19 is a community-wide hazard that is not unique to the workplace” — but rather that OSHA, in an exercise of its discretion, determined that the type of emergency standard that the AFL-CIO sought to impose (basic standards that had nothing to do with vaccination) were not necessary at that time. That is not a denial of authority to issue emergency COVID standards. Rather, it was an assertion of that authority, coupled with a denial that such standards were necessary at the time, in the agency’s discretion. Discretion, I need hardly add, that the agency believes it possesses!

Next we have the quote at pages 19-20, with some bold emphasis from me:

OSHA may issue an ETS [emergency temporary standard] only if it is “necessary to protect employees from” an identified grave danger. 29 U.S.C. § 655(c)(1). And an ETS is necessary only where it would substantially reduce the grave danger during the six months it serves as the standard (before the statute requires a permanent rule) and that such reduction in danger could not be obtained by enforcement of existing standards, requirements administered by other health authorities, or by widespread voluntary compliance. See, e.g., Asbestos Info. Ass’n, 727 F.2d at 426; Auchter, 702 F.2d at 1156. OSHA has determined this steep threshold is not met here, at least not at this time.

Never in the last century have the American people been as mindful, wary, and cautious about a health risk as they are now with respect to COVID-19. This elevated caution extends to the workplace. Indeed, many of the locations AFL-CIO identifies are not merely workplaces: they are stores, restaurants, and other places occupied by workers and the general public alike, in which the measures called for require a broader lens—and at times a broader mandate—than available to OSHA. Many workplaces have been (and remain) closed. Those that are open are subject to a range of measures to guard against transmission. Typical precautions are themselves acutely and ubiquitously recognized, e.g.,social distancing, cleanliness, the use of PPE, and quarantine of symptomatic persons. These measures, and many more, are already required by state and local authorities—and OSHA.

The professor relied on the second passage that I have bolded. At first blush, one might conclude that this language comes closer to supporting Justice Gorsuch’s argument made in the concurrence: that OSHA lacks authority to issue regulations regarding the workplace that would also have an effect on a worker at home. But I am not convinced that this passage supports Justice Gorsuch.

First and most obviously, Gorsuch did not quote or cite this passage. And this is a different argument than the argument made in the paragraph Gorsuch actually quotes, which is specifically addressing a hypothetical ETS directed to classes of infectious diseases “beyond COVID.”

Second, I don’t think even this uncited passage makes the argument that Justice Gorsuch is making. First of all, the first bold emphasis above shows OSHA claims some authority in this area. To the extent that OSHA disclaims authority in the second bolded passage, that passage to me says merely that the dangers at the workplace are posed not just by workers, but also include dangers posed by the public — meaning that efforts to fully address the risk would require a more comprehensive approach targeting customers as well as workers, which would arguably go beyond OSHA's mandate. But even this concession, as applied to vaccines, need not signify anything more than an arguable and at best implicit admission that a broad societal vaccination mandate as to all potential customers of a business is beyond OSHA's mandate. That does not necessarily mean not that forcing workers to be vaccinated is beyond OSHA's mandate.

As an analogy, a workplace might have fire hazards unique to the workplace, like faulty wiring, but that same workplace might also face potential fire hazards from members of society, such as the business’s customers, who might accidentally or willfully start a fire at the business. The fact that fully addressing all potential fire danger might go beyond OSHA’s mandate would not foreclose OSHA from regulating faulty wiring. Can we all agree on that?

But now I think I am straying into an analysis of the decision itself. And that’s the really good stuff, which comes later this week. That post will be reserved for the elite paid subscribers. If you’re not one already, why not become a member of the elite yourself?