Limitations of Statute.

• Author: Brown, Marcia

The conservative Supreme Court is poised to dismantle the regulatory state. Representative Pramila Jayapal is the lone liberal fighting back.

When the Supreme Court's draft decision overturning Roe v. Wade leaked to the press in early May, liberal Americans reeled--then vaulted into action. Thousands of grassroots activists rallied, protested, and funneled tens of millions of dollars to nonprofits fighting back. In state capitals around the country, Democratic legislators and governors denounced the decision and, in Washington, congressional Democrats forced an ill-fated vote to codify Roe.

Yet just a few months earlier, the Court took an ax to a protection that is at least as vital to the health, safety, and freedom of ordinary Americans, and most liberals hardly even noticed. In National Federation of Independent Business v. Occupational Safety and Health Administration (OSHA), six conservative justices overruled the Biden administration's emergency OSHA mandate that large employers must require their employees to be either vaccinated against COVID-19 or tested weekly for the virus. The majority reasoned that even though Congress, when it created OSHA 52 years ago, gave the agency the power to impose emergency measures to protect employees from the "grave danger" of exposure to "substances or agents determined to be toxic or physically harmful," the statute specifies "workplace" hazards, not broad public health threats like a virus. Therefore, the majority concluded, OSHA had exceeded its authority.

The ruling did more than halt a specific administration effort to stop the spread of the pandemic. More significantly, observed Linda Greenhouse in The New York Times, it was a "functional overturning" of a bedrock court decision that has long protected the power of federal agencies to issue regulations.

In 1984, the Supreme Court, in Chevron U.S.A. v. Natural Resources Defense Council, established that when a statute is ambiguous, judges should defer to an agency's reasonable interpretation of its authority. "Judges are not experts in the field, and are not part of either political branch of the Government," Justice John Paul Stevens wrote in the opinion.

While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices--resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities. Stevens's opinion, signed by a unanimous Supreme Court, defined a standard, known as "Chevron deference," that both liberal and conservative judges hewed to for decades to resolve cases involving regulatory agency interpretations of unclear statutes. (Even before the Stevens decision, courts generally--if not uniformly--deferred to agencies on many policy questions in order to make government function, argue scholars like the University of Michigan's Bill Novak and Columbia Law School's Gillian Metzger.) In recent years, however, conservatives gained control of federal courts and began wielding that power to advance their ideological agenda. Although Chevron cuts both ways, depending on which party is in power, it has become a target for conservatives eager to chip away at regulations.

Though the January OSHA decision doesn't mention Chevron, the Court's liberals understood the stakes. In their dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan ridiculed the majority's contention that threats both in and out of the workplace are beyond OSHA's purview, by noting that the agency...