Leah Bartlam, Associate Member, University of Cincinnati Law Review
On January 13, 2022, the Supreme Court issued a per curiam slip opinion granting a stay in a consolidated case involving a vaccine mandate. The Occupational Safety and Health Administration (OSHA) had published a COVID-19 vaccine mandate on November 5, 2021, that was swiftly met by litigation across the county. The OSHA mandate affected about two-thirds of all workers in the United States and required businesses with at least 100 employees to either ensure that all their employees were vaccinated or require employees to be tested once a week. Just over three months after the OSHA rule was announced, the Supreme Court granted a stay of the mandate based on its opinion that OSHA would not win the cases brought against it. This opinion effectively ended the OSHA mandate, which was officially withdrawn on January 26, 2022. Looking to the future, this opinion could signal how the current Supreme Court justices plan to address cases involving agency powers.
The second section of this article explains the Court’s decision on granting a stay of the OSHA mandate. The third section discusses how the current Supreme Court is likely to continue to limit agencies’ powers.
The Court’s discussion of the OSHA vaccine mandate began with an examination of the Occupational Safety and Health Act, which Congress enacted to create OSHA in 1970. Quoting parts of the Act, the Court emphasized that Congress granted OSHA the power to generate safety regulations directly related to the workplace. The Court went on to explain that only one emergency OSHA rule has ever been upheld by the judiciary and expressed concern over the number of workers affected, which was, according to the Court, much larger than the number affected by other OSHA rules. As it unpacked its holding in Section II of the opinion, the Court emphasized yet again that “[a]dministrative agencies are creatures of statute.” Continuing on, the Court focused heavily on the plain text of the Act that created OSHA and historical precedent to conclude that OSHA had overstepped its authority. Although the opinion was unsigned, only Justices Breyer, Sotomayor, and Kagan dissented, implying that the other six Justices formed the majority. Justice Gorsuch wrote a concurring opinion nearly as long as the majority’s and was joined by Justices Thomas and Alito.
The kind of analysis used in NFIB v. Dept. of Labor, OSHA is typical of originalism and other conservative methods of legal interpretation. This can be seen in the Court’s strict adherence to the separation of powers doctrine, attention to historical precedent, and dedication to interpreting the plain text of the Act. The Court currently has six conservative justices, and while each certainly has a unique style and method of interpretation, each one also is more likely to use an originalist approach. As this Court continues to choose and decide cases, we may see an increase in decisions limiting the powers of quasi-legislative, quasi-executive agencies such as OSHA based on similar reasonings. On February 28, 2022, the Court heard arguments in the case West Virginia v. EPA, which some predict will lead to a limiting of the Environmental Protection Agency’s ability to regulate greenhouse gas emissions related to the electric power industry. If the Court rules in favor of West Virginia, that will set the Court on a path to limit other agencies as well.
The Supreme Court’s recent per curiam opinion allowing a stay of OSHA’s vaccine mandate anticipates future cases limiting the powers of government agencies. The current Justices on the Court are likely to continue to take advantage of their conservative majority to constrain agencies strictly to their authorizing statutes.
 NFIB v. Dept. of Labor, OSHA, Nos. 21A244 and 21A247, 595 U.S. 1 (2022). The majority opinion is only nine pages long and well worth reading for a clearer understanding of the arguments used.
 Id. at 4.
 Id. at 3.
 Id. at 2.
 NFIB, 595 U.S. at 2 (2022).
 Id. The Court intentionally added emphasis to words such as “occupational” and “employment.”
 Id. at 3-4.
 Id. at 5.
 Id. at 6-8.
 NFIB, 595 U.S. at 1 (2022) (Justice Breyer, Justice Sotomayor, and Justice Kagan, dissenting).
 NFIB, 595 U.S. at 1 (2022) (Justice Gorsuch, concurring opinion).
 Noah Sachs, Supreme Court Conservatives May Slash EPA’s Authority on Climate, The American Prospect (Feb. 23, 2022), https://prospect.org/justice/supreme-court-conservatives-may-slash-epas-authority-on-climate/.