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National Federation of Independent Business v. Occupational Safety and Health Administration / Supreme Court should rule in OSHA's favor

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Position: Supreme Court should rule in OSHA's favor

This position addresses the topic National Federation of Independent Business v. Occupational Safety and Health Administration.


For this position

Opponents call mandates an imposition on liberty or, in the words of Texas Gov. Greg Abbott, an “assault on private business.” It’s true they’re an imposition. Highway speed limits and smoking restrictions are also impositions. The point is, they’re amply justified. Public health requires that people refrain from needlessly endangering others.

Against this position

Mr. Biden is presiding over a vast expansion of federal authority, one that Democrats will certainly come to regret the next time a Republican takes power. Moreover, the mechanism of enforcement — a presidential decree smuggled into law by the Department of Labor and its Occupational Safety and Health Administration — is fundamentally undemocratic. Congress is supposed to make new laws, not an unaccountable bureaucratic agency.
We understand that the COVID-19 pandemic, while it may be beginning to wane, remains a public health crisis of the highest order. But just as more Americans—including children ages 5-11 — are able to get vaccinated, and more parents and workers are making the right choice to get vaccinated, levying such steep fines on employers could result in still greater backlash and sow yet more division among Americans.
The federal court challenge to Biden’s vaccine employer mandate is not about whether vaccine mandates are a good idea or whether states can impose a mandate or whether individual employers can impose a mandate. This case is about whether the federal government through OSHA can issue a nationwide mandate.
Breakthrough cases are becoming more common, and vaccines alone will not stop the spread. A better approach would be to focus on ensuring states have adequate access to testing and the early virus treatments that are coming online. Such expansive federal mandates go against our system of federalism and our constitutional rights, and are unlikely to significantly slow the virus.
If the court rejects this industry mandate, in a perverse way the Republican-leaning justices will be doing Biden a favor. The mandate would add a burden to corporations large and small, which would presumably have to sideline reluctant workers at a time when they are struggling to find employees. That would further roil a recovering economy by disrupting the supply chain and compounding an inflation problem that leading Democrats, and the Federal Reserve, claimed would be transitory. Transitory is taking a long time to work through the economy.

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