No, courts, states alone can’t manage pandemics

Timothy L. O’Brien, Tribune News Service

As the Supreme Court continues dismantling legal support for sensible federal powers that enhance the public’s well-being, it also plants the seeds for future national problems.

Consider COVID-19 testing and vaccination mandates. The court’s conservative majority ruled Thursday that the Biden administration’s use of the Occupational Safety and Health Administration to enforce mandates in workplaces of 100 employees or more lacks congressional authorisation — and is therefore illegal.

OSHA is charged with securing workplace safety, and the 1970 act that created it required it to develop standards in conjunction with the businesses it regulates and through public hearings. But OSHA is allowed to act more quickly on its own when emergencies arise — by invoking “emergency temporary standards.”

OSHA has invoked such standards only nine times before now, and courts fully upheld just one of those actions. The bar to qualify for an “emergency” is high, and the Supreme Court doesn’t believe COVID-19 meets it. The White House — pointing to 800,000 American deaths and two years of viral assaults that have sideswiped the economy and communities — thinks it does.

Alas. If it isn’t an emergency, the court noted, then OSHA is bound by its enabling legislation. So it cannot tell employers to require people to look after their health and the health of their coworkers. It would be intrusive, the court said, and permit OSHA “to regulate the hazards of daily life.”

“The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense,” the court also observed. “This is no ‘everyday exercise of federal power.’”

That’s correct. This isn’t an everyday exercise of federal power. The pandemic is not an everyday event. It’s a national crisis that provoked a patchwork of responses, exposing how inadequate balkanized measures can be in a national emergency.

But the court insisted on narrowly defining OSHA’s mandate — in part, it said, because OSHA is empowered only “to set workplace safety standards, not broad public health measures.”

It’s unfortunate that the Supreme Court embraced this slender bit of legal sophistry first spouted by lower courts to block federal mandates. Lethal, contagious viruses don’t distinguish between workplaces and homes. That’s how they’re able to foster pandemics. There are plenty of substances used outside the workplace, including tobacco, drugs and alcohol, that are banned in the workplace. They’re banned because they’re dangerous — and they illustrate how public health intersects with the workplace.

The court said it could not determine whether the costs and potential resignations that employers would bear from a mandate were less weighty than the White House’s concern for deaths and hospitalisations. Congress has to assess that balance, the court said, and decide whether to further empower OSHA or some other agency to issue workplace mandates.

The court’s conservative justices are consistent in citing this reality: Congress makes the laws. But their longstanding preference that the federal government get out of the way of states lurks in the background. States know better how to arrange their own legal and regulatory affairs, the argument goes, and federal overreach is the problem, not the solution.

In the real world, relying on states to be effective stewards of public health and other values that cross state lines will continue to create hornets nests. Not always, but certainly on seminal issues. Public health crises, voting rights, reproductive rights, gun regulation and gambling are just some of the things that states now have an outsized role in managing, even though their choices affect core national values and cause shockwaves beyond their borders.

Public health emergencies aren’t best left to states alone to manage, or to Congress to endlessly debate — even if the Supreme Court thinks so. Just wait to see what happens when the next virus tears through workplaces nationwide.