By: Ryan H. Nelson
In January, the Supreme Court quashed the best thing our government had done to fight the pandemic. In a 6-3 opinion, the Court paused implementation of the Biden Administration’s workplace vaccine-or-test-and-mask requirement for larger private employers until its legal challenges resolved.
Granting such a drastic provisional remedy requires a determination that the challengers are likely to prevail at the end of the litigation. The Court’s majority believed that prerequisite to be satisfied because, in their view, the Occupational Health and Safety Administration (OSHA) lacked authority to impose the workplace vaccine-or-test-and-mask requirement. According to the majority, the requirement was not “occupational” in most workplaces since workers can catch COVID-19 anywhere. OSHA then chose to withdraw the requirement rather than fight a battle it was almost certain to lose.
The majority was wrong for several reasons. Foremost, all dangers that arise in the workplace are necessarily “occupational” dangers even if those dangers arise elsewhere, too. Take, for example, the backache you get from sitting at your desk at work, which you could also get from sitting in your armchair at home. Moreover, the law OSHA invoked to promulgate the requirement—Section 6(c) of the Occupational Health and Safety Act of 1970—does not use the word “occupational.” Thus, the Court’s insistence that OSHA can regulate only “occupational” dangers is an atextual reconceptualization of the Constitution’s separation of powers that belies precedent and sound governance in ways beyond the scope of this critique.
Yet, amidst this decision’s derision, one particular line in the majority’s opinion deserves pointed attention and castigation. In building its case for why the requirement needed to address dangers that were “occupational” in nature—not merely address “grave danger” to “employees,” as Section 6(c) of the Act says—the Court not only cited to the Congressional declaration of the Act’s purpose and policy, but it appears to have been persuaded by the agency’s name itself. “As its name suggests,” the Court reasoned, “OSHA is tasked with ensuring occupational safety.”
Despite the Supreme Court’s prior recognition that “the title of a statute or section can aid in resolving an ambiguity in the legislation’s text,” the majority invoked the agency’s name, not the title of the Act or Section 6(c), and it did so without finding an ambiguity in Section 6(c) that it needed to resolve. Has the Court invented a new rule that government agencies’ powers might be delimited by their names? If so, many federal initiatives could be doomed.
The U.S. Department of Housing and Urban Development has designated four “rural” communities in Florida, Kentucky, Puerto Rico, and South Carolina as promise zones aimed at “accelerat[ing] and strengthen[ing] the community’s own efforts at comprehensive community revitalization.” The government should not cease this valuable work because the agency’s name uses the word “urban” and not “rural.”
Within the U.S. Department of Veterans Affairs lies the National Cemetery Administration—the agency that runs Arlington National Cemetery in Virginia. Its oversight includes several civilians’ graves, such as those of First Lady Jacqueline Kennedy Onassis, Supreme Court Justices Thurgood Marshall and Ruth Bader Ginsburg, and civil rights activist Medgar Evers. Their graves deserve care in this place of honor despite the word “veteran” in the agency’s name.
The National Railroad Passenger Corporation, better known as Amtrak, includes several routes outside of our nation, including at least one route located entirely within Canada, between Aldershot and Toronto. The government ought not sever the tracks at the border on account of the word “national” in the agency’s name.
New technology “preventing failure as well as expensive repairs and replacements” in “electrical generators” was developed not by the U.S. Department of Energy, but by the Bureau of Reclamation within the U.S. Department of the Interior, the agency that manages natural resources and cultural heritage. The agency should not stop working to keep electricity prices down because the word “interior,” not “energy,” appears in its name.
These examples highlight the absurdity of the Supreme Court’s insinuation. Agency names do not constrain agency powers. Laws do. Hopefully, the Supreme Court’s suggestion to the contrary was mere dicta—a throwaway, introductory clause prefiguring the actual legal analysis to come. But, with this Court’s hostility to the administrative state, one can never be too certain.
Ryan H. Nelson (@RyanHNelson) is an Assistant Professor of Law at South Texas College of Law Houston.