The Volokh Conspiracy

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Who Decides, Redux?

In NFIB v. OSHA, the majority, concurrence, and dissent disagree on who decides about COVID mandates.


During oral arguments in NFIB v. OSHA, several Justices seemed to have Judge Sutton's new book on their minds. Justice Kagan asked, "who decides?" Justice Breyer asked, "Should it be that we decide?" Justice Kavanaugh "follow[ed] up on Justice Kagan's who decides question." Justice Gorsuch "return[ed] to the question of who decides." Who should decide the COVID mandate cases?

Justice Gorsuch's concurrence in NFIB v. OSHA poses this question in the very first sentence:

The central question we face today is: Who decides?

Gorsuch says OSHA does not get to decide. That decision belongs to the states, or perhaps Congress–but really the states.

The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people's elected representatives in Congress.

But in a way, the Court must decide–decide that OSHA lacks the power to impose this regulation.

This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

The joint dissent by Justices Breyer, Sotomayor, and Kagan returns to the "who decides" theme:

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? 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 responsibility for any damage it causes?

And, in a passage that was almost certainly written by Justice Kagan, the dissent stresses that the agency, and not the Court is accountable:

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. South Bay United Pentecostal Church, 590 U. S., at ___ (opinion of ROBERTS, C. J.) (slip op., at 2). . . . 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.

The dissent closes with one of the most effective pieces of judicial rhetoric I have seen in some time:

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.

Well done. Out of curiosity, I Googled "When we are wise," and the best I could find was a tweet by John C. Maxwell, a pastor and author.

I suspect this theme of "Who Decides?" will recur throughout the term. Maybe even in Dobbs. This line may come back to bite Justice Kagan very soon: "When we are wise, we know enough to defer on matters like this one. "