The Volokh Conspiracy

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Judge Bush: The OSHA Mandate Is A Pretextual Regulation of Non-Commercial Activity

"If Congress cannot solve a perceived commercial problem with a 'mandatory purchase,' then how can it possess the authority, much less delegate it, to solve a perceived commercial problem by mandating that Americans engage in a non-commercial activity."


Yesterday, I wrote about the Sixth Circuit's sharply-divided en banc decision on the OSHA mandate. Chief Judge Sutton wrote the principal dissent for eight judges. Judge Bush wrote a solo dissent that is worth a careful read. He explains that the COVID mandate is not in fact a regulation of workplace safety; that rationale is pretextual. Rather, the agency has tried to regulate non-commercial activity. That power would be beyond Congress's authority. And it is way beyond the authority of a bureaucracy to enact unilaterally.

First, Bush explains that the OSHA mandate exceeds the power asserted in NFIB:

What first principles dictate, fresh precedent confirms. The Supreme Court in recent years has squarely rejected a view of the commerce power under which "individuals may be regulated . . . whenever enough of them are not doing something the Government would have them do." Nat'l Fed. of Indep. Bus., 567 U.S. at 553 (opinion of Roberts, C.J.); accord id. at 649–60 (Scalia, Kennedy, Thomas, and Alito, JJ., dissenting). The case I mention involved an individual mandate to coerce those without health insurance to purchase it. Id. Congress claimed the power to regulate the failure to engage in a commercial activity—the buying of insurance—because uninsured persons' failure to do so had a substantial aggregate effect on interstate commerce. Id. at 554. Here, by contrast, OSHA claims the power to regulate the failure to engage in a non-commercial activity—the taking of a vaccine—because unvaccinated persons' failure to do so may affect interstate commerce. OSHA's theory of the commerce power is thus even more extravagant than what the Supreme Court has already rejected. If Congress cannot solve a perceived commercial problem with a "mandatory purchase," then how can it possess the authority, much less delegate it, to solve a perceived commercial problem by mandating that Americans engage in a non-commercial activity?

But, you may ask, isn't the OSHA mandate clearly a regulation of commercial activity? After all, the policy regulates workplace safety.

Second, Bush contends that this asserted rationale is pretextual. The OSHA mandate is not really a workplace safety law. Bush explains:

For even accepting that Congress (and thus, perhaps, OSHA) has the power to regulate a workplace hazard that affects interstate commerce, that is not what OSHA has done. OSHA has instead pretextually redefined what is at this point a hazard of life in the United States and throughout the world—COVID-19—as a hazard of the workplace. It engages in this pretext in its attempt to bring a traditional matter of state concern—compulsory vaccination—within the ambit of federal jurisdiction.

Third, Bush writes that under controlling precedent, the federal government cannot pretextually deem some non-commercial activity as commercial.

But caselaw is clear. Neither Congress nor OSHA may pretextually relabel such an area as "commerce" to gain what is, in effect, a novel police power of the national government. See Morrison, 529 U.S. at 616–18 (rejecting the notion that Congress may regulate domestic violence merely because of a purported "effect on interstate commerce"); see also id. at 617–18 ("The Constitution requires a distinction between what is truly national and what is truly local."); Lopez, 514 U.S. at 567–68 (rejecting Congress's attempt to relabel firearms near schools a problem of interstate commerce).

Fourth, Judge Bush flags an argument raised by the states:

The states arguing in support of the stay put it this way: If Congress does not have the power under the Commerce Clause to force individuals to buy health insurance, could it make an end-run around that rule by telling employers that they cannot retain uninsured employees? And if Congress cannot do so, then why can it tell employers that they cannot retain unvaccinated employees?

Most Americans work. The federal government could easily sidestep the rule of NFIB by telling all employers to terminate employees who do not take some action. Or more precisely, the Feds can penalize employers who continue to employ workers who disregard a federal mandate of non-commercial activity. Where is the limiting principle here? That OSHA drew the line at 100 employers is not very helpful.

Even if you're not entirely moved by Bush's argument, his position gives that much more force to Judge Sutton's analysis on the "clear statement" rule. Courts should be very skeptical when agencies assert such as sweeping power that rests on a precarious constitutional foundation.

I have been very impressed by Judge Bush's willingness to write separately on questions of first principle. For example, he wrote a powerful concurrence in Preterm Cleveland v. McCloud that challenged Roe on originalist grounds. He is a worthy successor to Judge Boggs, for whom I clerked.