Who Decides

“The central question we face today is: Who decides?”  So began the majority opinion in the Supreme Court’s recent decision to block implementation of OSHA’s covid regulation.

Although the dissent vigorously disagrees with the majority’s decision, it agrees about what is the central issue in the case:  “Underlying everything else in this dispute is a single, simple question:  Who decides how much protection, and of what kind, American workers need from COVID–19?”

The “who decides” issue frequently arises in our dispute resolution field.  There is a body of legal doctrine about whether courts or arbitrators should decide various arbitration issues.  Some mediators say that mediators decide about the process and parties decide about the substance (though I’m not wild about this distinction or practice).  Ethical rules for lawyers distinguish between decisions that clients make, particularly whether to accept settlement offers, and those that their lawyers can make.

In the Supreme Court case, the majority and dissent nominally agree that Congress should decide whether OSHA has the authority to issue the covid regulation.  Both opinions cite the statute authorizing OSHA to issue emergency temporary regulations, which OSHA relied on.

Citing a recent per curiam decision, the majority states, however, “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”  The majority decided that the statute does not clearly authorize the regulation.  But as I noted in a recent post including the text of the statute, it’s hard to imagine a statute that more clearly authorizes a regulation.

Professor Kimberly Wehle calls this decision a “power grab … masked … as an act of judicial restraint.”  She writes that this decisions upsets “decades of constitutionally established power-sharing between the legislative and executive branches.”  She concludes that “[t]he conservatives’ major questions doctrine puts that power solidly in the judicial branch, handing it ultimately to Supreme Court justices who can now decide which laws they like and don’t like with virtually no oversight or constraints.”

NYT columnist Linda Greenhouse argues that this decision essentially overturns the Chevron doctrine, which holds that “judges should defer to an administrative agency’s reasonable interpretation of an ambiguous statute” and was adopted unanimously in 1984.  Republicans liked Chevron during the Reagan Administration,  when Democrats controlled Congress.  Conservatives now find it less appealing when the “shoe is on the other foot” with a Democratic president.

In the OSHA case, the dissent criticizes the majority’s decision because of courts’ lack of competence and political legitimacy in effectively overruling OSHA’s regulation.

Here, an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed.  The agency has thoroughly evaluated the risks that the disease poses to workers across all sectors of the economy.  It has considered the extent to which various policies will mitigate those risks, and the costs those policies will entail.  It has landed on an approach that encourages vaccination, but allows employers to use masking and testing instead.  It has meticulously explained why it has reached its conclusions.  And in doing all this, it has acted within the four corners of its statutory authorization – or actually here, its statutory mandate. … The agency’s Standard is informed by a half century of experience and expertise in handling workplace health and safety issues.  The Standard also has the virtue of political accountability, for OSHA is responsible to the President, and the President is responsible to – and can be held to account by – the American public.

And then, there is this Court.  Its Members are elected by, and accountable to, no one.  And we “lack[] the background, competence, and expertise to assess” workplace health and safety issues. …  When we are wise, we know enough to defer on matters like this one.  When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions.  Today, we are not wise. …  Without legal basis, the Court usurps a decision that rightfully belongs to others.  It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.

As Ms. Greenhouse notes, administrative agencies sometimes exceed their statutory authority and it’s appropriate for courts to block enforcement of regulations when they do so.  However, it’s not a close case whether OSHA had authority to issue its covid regulation.

As Professor Wehle argues, notwithstanding the majority’s claims of merely deferring to Congress, its decision shifts the power to decide to courts and away from Congress and administrative agencies.