“Today We Are Not Wise.” Justice Stephen G. Breyer, Dissenting In The OSHA Vaccine Mandate Case*

10 min readFeb 13, 2022
United States Supreme Court As Composed October 27, 2020

Congress creates most federal agencies in the United States and authorizes them to promulgate and enforce regulations to carry out congressionally defined policy enactments. Most such agencies are part of the executive branch, the body that enforces the laws Congress makes. Given that federal agencies are responsible for overseeing legal, technical, industrial, and scientific policies, they employ well educated and highly skilled personnel in specialized disciplines. Many are world-renown scholars and experts.

Congress, quite obviously, doesn’t have the expertise, time, patience, or capacity to understand and fill in the details necessary to carry out its policy enactments which are integral to helping assure public health, safety and welfare. The only requirements for membership in the House, after all, are that the candidate is 25 years of age or older, has been a U.S. citizen for at least seven years, and lives in the state s/he wishes to represent. For membership in the Senate, the candidate must be 30 years of age or older, a U.S. citizen for at least nine years, and live in the state s/he wishes to represent.

You may recall the recent case National Federation of Independent Business v. OSHA where the Supreme Court prohibited OSHA from implementing an emergency standard, the vaccine mandate (“Standard”), on much of America’s workforce. The Standard required employees in companies with at least 100 employees to receive a vaccine or be tested each week and mask up. The question before the court was whether OSHA’s Standard fell within Congress’s express authorization.

In an unsigned decision, a majority of the Court said no.

This case offers a clear view of the direction the conservative majority appears to be headed, not just with OSHA or vaccines but with congressional authorization of federal agencies generally, a direction that portends poorly for the country.

Congress created the Occupational Safety and Health Administration in 1970 by passing the Occupational Safety and Health Act. Congress authorized OSHA to fulfill its congressionally defined mission, “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance.” OSHA Mission

Attempting to carry out that mission, OSHA recognized that COVID-19 “poses grave dangers to the citizens of this country — and particularly, to its workers.” A large body of employers with employees in close proximity have little financial incentive to create safe workspaces. Depending on the type of danger, many such employers lack the specialized knowledge and skill. A vast majority of employees have little or no control over their workplace environments which, in the age of COVID-19, present optimal conditions for the virus to spread and workers to become infected. Employees have no choice but to rely on their financially disincentivized employers, but with OSHA oversight, to provide safe workspaces. Hence, OSHA took measures, within its precise congressional mandate, to mitigate workplace dangers presented by COVID-19.

Then the Supreme Court stepped in, “[a]cting outside its competence and without legal basis,” according to Justice Breyer.

Conservatives hate activist judges, except when they don’t. Beyond just this specific case, the conservative majority of the Supreme Court is poised to undermine existing legislation and materially change the power structure that has existed for decades, forcing even more gridlock in Congress. And with the filibuster in place, the federal government’s ability to pass legislation to benefit public health, safety, and welfare — to the satisfaction of an activist conservative majority — will be seriously impaired if not rendered impossible.

In the short term and with Democrats in power, that is precisely what the GOP wants. They much prefer that the current administration fail than that the lives of people improve. To the delight of the Federalist Society and a post-governing GOP, the broader repercussions would place serious constraints on the federal government’s ability to protect American citizens in virtually every category on which we rely for health and safety, leaving interstate, national, and global issues to be addressed, if at all, haphazardly, inconsistently, and inadequately by the individual states.

The pandemic is a perfect example.

Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust (From the Artist’s Urban American Realism Collection)**
Watercolor, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust (from the Artist’s Urban American Realism Collection)**

I begin with Justice Breyer’s dissent in which Justices Sotomayor and Kagan joined. After analyzing OSHA’s history, the statutory language, its interpretation and application, Justice Breyer saw the question as simple and the answer clear:

“OSHA’s rule perfectly fits the language of the applicable statutory provision. [The] provision commands — not just enables, but commands — OSHA to issue an emergency temporary standard whenever it determines ‘(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.’. . . Each and every part of that provision demands that, in the circumstances here, OSHA act to prevent workplace harm. . . .

“[T]he administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID-19’s continuing threat in those spaces. . . .

“Today, the Court [prevents the Standard from going into effect], contravening clear legal principles and itself causing grave danger to the Nation’s workforce.”

“Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from any damage it causes? Here an agency charged by Congress with safeguarding employees from workplace dangers has decided the 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. OSHA, that is, has responded in the way necessary to alleviate the “grave danger” that workplace exposure to the “new hazard[]” of COVID–19 poses to employees across the Nation. . . . 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. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. 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.

Oil on Canvas, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust (from the Artist’s Urban American Realism Collection)**

Justice Gorsuch wrote the most telling opinion, in which Justices Thomas and Alito joined, concurring in the court’s decision to prevent OSHA’s emergency Standard from going into effect. Let’s just say, getting to that outcome was anything but a straight line. For a branch of government to act, he said, it must “properly invoke a constitutionally enumerated source of authority.” Justice Gorsuch then diverged from the plain language of Congress’s express authorization to OSHA with what is known as the major questions doctrine. For Congress to authorize an executive branch agency to make and enforce “decisions ‘of vast economic and political significance,’” such as the vaccine mandate here that impacts the lives of millions of Americans, he claimed the court expects “Congress to speak clearly.”

He acknowledged that the law authorizes OSHA to issue “‘emergency’ regulations upon determining that ‘employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful’ and ‘that such emergency standard[s] [are] necessary to protect employees from danger[s].’” He claimed, however, that this congressional delegation has historically been applied to “modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos, and rare chemicals.”

And the law was not adopted in direct response to the pandemic which he viewed as disqualifying given the major questions doctrine.

In addition, Justice Gorsuch claimed the above language does not authorize OSHA to issue “’sweeping health standards’ that affect workers’ lives outside the workplace. . . . Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers. . . . If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.” Despite the clear statutory language and express grant of authority from Congress, the three justices in the concurrence couldn’t seem to trace it. Moreover, as rebutted by Justice Breyer, discussed below, Congress in fact did speak in favor of OSHA’s response to the pandemic, and quite clearly.

Justice Gorsuch also relied on what is known as the nondelegation doctrine, which “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” This, in my opinion, will have the greatest impact on the shift of congressional authority to the states. Presumably the High Court will be the arbiter of whether policy enactments with specific authorization to federal agencies constitute a “delegation of legislative powers to unelected officials.” With the Federalist Society activist jurists on the Court, that will be a very high bar.

Back to the dissent. Justice Breyer made two things clear:

First, “OSHA has long regulated risks that arise both inside and outside the workplace,” “risks that arise not only in workplaces but in many physical facilities.”

Second, and contrary to Justice Gorsuch’s claim that Congress had not spoken on this subject, “[i]t appropriated $100 million for OSHA ‘to carry out COVID-19 related worker protection activities’ in work environments of all kinds. That legislation refutes the majority’s view that workplace exposure to COVID-19 is somehow not a workplace hazard. Congress knew — and Congress said — that OSHA’s responsibility to mitigate the harms of COVID-19 in the typical workplace do not diminish just because the disease also endangers people in other settings.”

And as with many of the workplace dangers OSHA mitigates, Congress could not have predicted the COVID-19 specifics. Congress did, however, predict and accommodate such contingencies by commanding OSHA to issue emergency standards where “necessary to protect employees from” “grave danger from exposure to . . . agents determined to be . . . physically harmful or from new hazards.”

As expected, the Federalist Society hat trick has created a fundamental shift in Supreme Court jurisprudence which, in my view, portends poorly for public health, safety, and welfare. A recent New York Times Op-Ed by Adrian Vermele, Supreme Court Justices Have Forgotten What The Law Is For, shed some light on a different jurisprudential approach that addresses the common good of the people they purport to serve. Mind you, he takes on both originalists and progressives as missing the point. While I disagree with portions of his argument and analysis, he said this about the Supreme Court’s decision in the vaccine mandate case which, in my view, largely aligns with Justice Breyer’s analysis and my argument that the conservative majority is activist:

“[T]he court erred in the recent decision in National Federation of Independent Business v. Department of Labor that, in effect, barred the Occupational Safety and Health Administration from requiring vaccination (or a test-and-mask regimen) in large workplaces. The safeguarding of public health is a core duty of governance, and Supreme Court precedent long ago established that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” The court held that because the relevant laws gave OSHA the power to regulate workplace safety specifically, it could not regulate more general public health risks, like Covid, that also have important effects in and through the workplace — a libertarian non sequitur. The fear of rule by unelected bureaucrats in government agencies does not justify actual rule by unelected bureaucrats on the bench.

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*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, **The Contortionists**, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. **The Contortionists** is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.




Exercising my right not to remain silent. Criminal defense and First Amendment attorney.