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.
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