Andrew Harnik/AP Photo
President Biden attends a virtual meeting with family and independent farmers and ranchers, on January 3, to discuss work to boost competition and reduce prices in the meat-processing industry.
The Supreme Court’s conservative majority invalidated the Occupational Safety and Health Administration’s vaccine mandate on Thursday, despite OSHA’s explicit statutory mandate to protect “employees [who] are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” The unsigned majority opinion acknowledged that OSHA has authority to regulate occupational hazards, and even occupation-specific risks related to COVID-19. It just decided that you cannot institute a broad mandate, because the virus is not solely an occupational hazard.
The ruling will make it harder to ensure wider adoption of vaccinations and expose more people to COVID. But the danger goes beyond this case, summed up in a single sentence in the opinion: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”
A far more frightening concurring opinion from Justices Gorsuch, Thomas, and Alito also stresses this sentence, which is actually copied over from the Court’s opinion tossing out the CDC’s eviction moratorium. They call it the “major questions” doctrine, and if fully applied it would drive a stake through the heart of the administrative state.
The major questions doctrine turns unelected judges into deciders of whether government can operate in the public interest. Who decides what is a power of “vast economic and political significance”? The judges, of course. And who decides whether Congress spoke “clearly” when delegating those powers to executive branch agencies? The same judges.
For Congress to have known when writing the Occupational Safety and Health Act of 1970 that a viral pandemic would make workplaces treacherous 50 years later would require time travel. There was no way for lawmakers to “clearly” state that they meant novel coronaviruses when they established OSHA to protect employees from “toxic substances” and “new hazards.” Congress writes statutes broadly to cover future scenarios because they must allow them to fit changing circumstances. As Dahlia Lithwick and Mark Joseph Stern explain, this invented doctrine that Congress must be explicit on “major” questions is an excuse to invalidate whatever interpretation of statute the conservative majority on the Court doesn’t like.
While wonks scoff at the idea that the voice of a president can serve any public-policy purpose, you only have to look at this week’s inflation news to find evidence of it.
The concurring opinion is far sharper on this point, and thankfully that opinion didn’t represent the Court’s majority. But it’s precisely what Scott Lemieux warned about in our Day One Agenda series, that a conservative court would make it difficult if not impossible for a president to faithfully execute the nation’s laws through agency action.
So what does this mean for the Day One Agenda? As we said then, it should provoke concern but not defeatism. The same day that the Court shot down the OSHA vaccine mandate, it allowed a health care worker vaccine mandate to go through, because health care facilities receive federal Medicare and Medicaid funding, and the agency that delivers that funding can set conditions on those funds. There are still five votes for this routine use of executive authority.
But you would have to be willfully blind to argue that some executive actions are going to be beyond the pale, at the whim of a conservative Court. A majority of justices in 2019 allowed Donald Trump to pull money from a military construction budget, with no authorization from Congress, to use to build a border wall. The Court’s interpretation of the major questions doctrine is subjective and ideological. It’s obviously hypocritical and absurd to me, but I am not on the Supreme Court, and as long as a Gilded Age mindset rules there, many uses of executive authority will be imperiled.
However, it’s worth looking at President Biden’s response to Thursday’s rulings when you consider what powers a president has. “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,” Biden said.
He is correct. And while wonks scoff at the idea that the voice of a president can serve any public-policy purpose, you only have to look at this week’s inflation news to find evidence of it. While we learned that inflation rose at a four-decade high in December, meat prices fell. As I noted yesterday, that is consistent with a presidential power story.
As far back as June and continuing in September, the administration has placed a spotlight on the meat oligopoly, explaining that four firms control a large majority of beef, pork, and poultry processing, and that they were increasing prices on finished meat to grocery stores while paying less for cattle and hogs and chicks, increasing their gross profit margins. These companies have been criminally investigated and indicted for price-fixing, so it isn’t a great leap to say that they’ve been exploiting the inflation headlines to pad profits.
President Biden later himself got involved personally, holding a roundtable with farmers and ranchers and announcing a plan to increase competition in the industry. “Capitalism without competition isn’t capitalism; it’s exploitation,” Biden said. “Small, independent farmers and ranchers are being driven out of business … It strikes at their dignity, their respect, and the family legacies so many of them carry for generations after generation.”
The plan was a mixed bag—$1 billion in funding for independent processors probably won’t do too much—but it included two important items: a recommitment to issue new rules under the Packers and Stockyards Act to protect farmers and ranchers from deceptive, discriminatory, and unfair practices (part of our Day One Agenda), and a joint venture between the U.S. Department of Agriculture and the Justice Department to solicit complaints from farmers and ranchers about anti-competitive and abusive treatment by the meatpackers.
I would submit that the meat-processing oligarchs got the message here. The industry saw administration officials vowing for months that it would pay for gouging the public and shortchanging farmers, and so companies backed off their price spikes. Ground beef only started to fall in December, as this rhetoric reached an apex. Producer prices began to decelerate last June, the same month that USDA said they’d rewrite the Packers and Stockyards Act. Using the bully pulpit and announcing the intent to take action worked, in this case.
I’ve seen some scoff that prices for meat falling before the White House’s actions had a chance to work proved that those actions were unnecessary and not a way to fight either inflation or monopolization. These people don’t know how power works. Everyone in finance understands the concept of market signaling, where a hint of the direction of future policy drives decision-making. This is a signal of strong conduct to come. Of course the processors took the point.
It’s not limited to meat. Since Rohit Chopra took over at the Consumer Financial Protection Bureau, he has made clear that he will investigate banks that rely on taking in billions in overdraft fees as part of their business model. Chopra highlighted Bank of America, Wells Fargo, and JPMorgan Chase in particular. This week, Bank of America announced it would lower its primary overdraft fee from $35 to $10. JPMorgan said it would allow customers to overdraft by $50 before incurring a fee, and offer a one-day grace period after that. Wells Fargo said it would announce changes soon.
You could go back to the Federal Trade Commission’s announcement to enforce “right to repair” leading Apple and Microsoft to change their policies to allow individuals to repair their products. Or the Education Department fixing loan forgiveness programs and student loan servicers leaving the business, now that they know they cannot profit off abusing borrowers.
Governments can change corporate behavior by announcing they will actually enforce the law. That’s what John Kennedy did in the 1960s to prevent steel price increases. The bully pulpit, backed by a clear and swift signal to take action, can make a difference.
So the Day One Agenda is not dead, and neither is the administrative state. Governments make thousands of decisions every day. Few will be scrutinized by the judiciary, and fewer still will be invalidated. The OSHA vaccine mandate’s demise is discouraging, and what the Court is doing to block action in the public interest is nauseating. But it must not be an excuse for inaction, especially when action works.
