How conservative justices’ anti-regulatory fervor could hamper the COVID fight

WASHINGTON » During the course of the pandemic, it has become a bureaucratic badge of honor to argue that authorities are taking a “whole of government” approach to tackling the virus. In one of the more jarring moments in Friday’s oral arguments about the Biden administration’s efforts to mitigate COVID-19, Chief Justice John Roberts seemed to be arguing that trying to use all the statutory tools available to it somehow undermined the government’s legal argument.

“You said just a short while ago that … COVID presented a grave danger to people in the workplace,” Roberts told Biden Solicitor General Elizabeth Prelogar, who was arguing in favor of the Occupational Safety and Health Administration’s vaccine or testing mandate. “In a few minutes, we’ll hear an argument … and it will be that it presents a grave danger in Medicare and Medicaid facilities.

“Not here, but in the lower courts, the federal contractor mandate, the argument is going to be that it is a grave danger to federal contractors. … It seems to me that it’s that the government is trying to work across the waterfront and that it’s going agency by agency.”

This is supposed to be a bad thing? I thought conservatives cared about statutory language and whether the text of the law authorized the action at issue. The chief justice is the most reasonable of the court’s conservatives, but his logic here seems upside down: The government gets marked down for trying too hard.

Prelogar pushed back at Roberts. “What we’re trying to do here and what OSHA did was rely on its express statutory authority to provide protection to America’s workforce from grave dangers like this one,” she said. “So I take the point and don’t dispute that COVID-19 is a danger in many contexts and falls within the jurisdiction of other agencies as well, but I think to suggest that because this disease is so prevalent, because it presents such a widespread harm, somehow OSHA has less power to do anything about it …”

At which point Roberts interrupted and showed his real hand: There’s just too much darned regulating going on here. “It sounds like the sort of thing that states will be responding to or should be and that Congress should be responding to,” he said.

Earth to chief justice. States are responding — some responsibly, too many others in precisely the wrong way, preventing employers from taking steps to protect their workers. And COVID doesn’t stop at state borders; it is a national problem, amenable to national solutions under the constitutional power to regulate interstate commerce, among other authorities.

As to the role of Congress, as Prelogar pointed out, it has spoken. It created OSHA in a broadly worded law whose textual application to the situation at hand Roberts did not dispute.

Instead, he switched to another novel argument: that laws, or maybe only laws that give agencies regulatory authority, have some kind of sell-by date. “You know, that was 50 years ago that you’re saying Congress acted,” he told Prelogar. “I don’t think it had COVID in mind. That was almost closer to the Spanish flu than it is to today’s problem.”

And this matters because

…? The authority provided by a broadly worded statute doesn’t run out as the law ages. Laws don’t stop mattering just because they’re old. There are any number of laws giving federal agencies broad authority to regulate issues and technologies that their drafters could scarcely have imagined.

For example, the 1914 law creating the Federal Trade Commission, as amended in 1938, empowers the agency to prevent “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce.” The law’s authors could not have conceived of it being enforced against large technology platforms, modern pharmaceutical companies or Internet scammers — none of which existed until decades after the agency was created.

I get Roberts’s concern here.

The OSHA rule goes beyond what the agency has previously done — but novelty does not equal impermissibility. Instead, it may reflect novel need. As Justice Elena Kagan noted, “It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before.”

Would it be better — more clearly authorized, more smalld democratic — if Congress were to specifically authorize the mandate? Sure, but we all know that’s not happening in this political environment, and preferable does not equal necessary.

Roberts and his conservative colleagues appear poised to tell OSHA that it’s gone too far. They’ll likely say something about how this is the kind of “major question” on which Congress must have clearly authorized such regulatory intervention. But there’s another major question here: Does the conservative justices’ antipathy toward regulation make it impossible for our country to protect itself?