The question of whether the Occupational Safety and Health Act was empowered to enforce the law or politics was recently decided by the U.S. Supreme Court.
I admit surprise that Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor disagreed with the decision that I predicted in my News-Press column on Sept. 25. Why did I write a piece on what to me was a long-settled issue? Because it was in September that communications from White House Chief of Staff Ron Klain indicated that the administration thought it could end-run Congress by using OSHA to enforce their nation-wide vaccine mandate.
Why was I certain of the Supreme Court ruling against the mandate for businesses in the private sector?
The background of my analysis began in 1969 when Neil Armstrong’s walking on the moon inspired me to switch from “what are my current career choices” to “what would I like them to be?” About all I knew was that I wanted to be responsible for making my own decisions and contributing to our free enterprise system.
I had seen that during case studies there always reached a point where the actions depended on legal questions, which meant that far too many times lawyers were the decision makers.
After Mr. Armstrong, I asked: Why not me?
I will say there were risks in turning down attractive offers from Macdonald Douglas and Dow Chemical based on my math and management degrees. My wife’s parents accusing me of being a “professional student” raised the question: Why not?
I was able to negotiate the University of Tennessee’s offer of an instructorship in statistics to fund law school instead of the intended Ph.D in management science. Subsequently teaching a case study course reinforced my opinion that lawyers were decision makers. This was reinforced in initial cases under OSHA when the judge dismissed the case against my client because of my argument that the Occupational Safety and Health Act did not have jurisdiction.
Congress indicated the jurisdiction of OSHA by placing its administration under the U.S. Department of Labor to “assure safe and healthy working conditions” — in other words, “the workplace.”
Congress also provided that OSHA was required to publish potential regulations in order to receive, and consider, input from industry before issuing final regulations. Understanding the rules before you act was one of the reasons I pursued a law degree.
Why didn’t OSHA follow the approach of the Chief of Staff in September? This administration’s choice for secretary of labor, the former mayor of Boston and head of the Building and Trades Council, Marty Walsh, took office on March 23. However, it was not until Nov. 5 that Doug Parker became the head of OSHA. Two days later, OSHA used its emergency regulations to bypass the public notice requirement and require the 84 million who worked for employers of 100 or more employees to require their employees be vaccinated, and those not vaccinated wear masks at work and be tested weekly.
The significance of the regulations and their taking effect in January 2022 caused the courts to escalate their rulings. And it led the U.S. Supreme Court to stay the implementation until after the court’s emergency hearing in early January.
Before the hearing, Justice Sotomayor published her opinion that the vaccine requirements should be upheld. Such opinions prior to the hearing are grounds to have the judge removed from that case if they choose not to recuse themselves from taking part in the decision. Ironically this applies to all judges except the iustices on the Supreme Court, who are on their honor to decide for themselves.
Justice Sotomayor did not recuse herself.
After arguments, Justices John Roberts, Brett Kavanaugh, Clarence Thomas, Amy Coney Barrett, Neil Gorsuch and Samuel Alito held that OSHA empowers “the Secretary to issue workplace safety standards, not broad public health care measures” and rejected the OSHA regulations.
These justices held the “COVID-19 can, and is, spread at home, in schools, during sporting events and everywhere else people gather. That kind of universal risk is no different from the day-to-day dangers that all face from all types of dangers from crime to air pollution, or any number of communicable diseases.”
Who could disagree with this application for a law whose purpose is safety and health in the workplace?
The Clinton and Obama nominees Justices Breyer and Kagan and the aforementioned Justice Sotomayor did disagree through a dissent based not on legal reasons but because “extraordinary times lead to extraordinary measures.”
If even this retired University of Tennessee grad and corporate counsel predicted the ruling of the six justices that OSHA did not have jurisdiction, and even the well-qualified other three justices could not state a legal reason for the vaccine requirements: Why was the mandate selected by Ron Klain — a Harvard law grad, a former law clerk for Justice Byron White, former chief of staff for vice presidents Al Gore and Joe Biden, and the current White House chief of staff?
The six justices’ holding reinforces my spontaneous decision on that fateful day in July 1969 to “dream big” and study the rule of law in order to make decisions pursuant to it.
Brent E Zepke is an attorney, arbitrator and author who lives in Santa Barbara. Formerly he taught at six universities and numerous professional conferences. He is the author of six books: One Heart-Two Lives, Legal Guide to Human Resources, Business Statistics, Labor Law, Products and the Consumer, and Law for Non-Lawyers.
