Read the National Federation of Business case, and submit a written summary of the facts, what the Court ruled, the Court’s justification for its opinion, and potential implications of th

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1 (Slip Opinion) Cite as: 595 U. S. ____ (2022)

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

Nos. 21A244 and 21A247

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., APPLICANTS

21A244 v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

OHIO, ET AL., APPLICANTS 21A247 v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

ON APPLICATIONS FOR STAYS

[January 13, 2022]

PER CURIAM. The Secretary of Labor, acting through the Occupational

Safety and Health Administration, recently enacted a vac- cine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers re- ceive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medi- cal test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation ad- dressing the COVID–19 pandemic, it has declined to enact

2 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

Per Curiam

any measure similar to what OSHA has promulgated here. Many States, businesses, and nonprofit organizations

challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that appli- cants are likely to prevail, we grant their applications and stay the rule.

I A

Congress enacted the Occupational Safety and Health Act in 1970. 84 Stat. 1590, 29 U. S. C. §651 et seq. The Act created the Occupational Safety and Health Administra- tion (OSHA), which is part of the Department of Labor and under the supervision of its Secretary. As its name sug- gests, OSHA is tasked with ensuring occupational safety— that is, “safe and healthful working conditions.” §651(b). It does so by enforcing occupational safety and health stand- ards promulgated by the Secretary. §655(b). Such stand- ards must be “reasonably necessary or appropriate to pro- vide safe or healthful employment.” §652(8) (emphasis added). They must also be developed using a rigorous pro- cess that includes notice, comment, and an opportunity for a public hearing. §655(b).

The Act contains an exception to those ordinary notice- and-comment procedures for “emergency temporary stand- ards.” §655(c)(1). Such standards may “take immediate ef- fect upon publication in the Federal Register.” Ibid. They are permissible, however, only in the narrowest of circum- stances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from

3 Cite as: 595 U. S. ____ (2022)

Per Curiam

new hazards,” and (2) that the “emergency standard is nec- essary to protect employees from such danger.” Ibid. Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full. See BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F. 4th 604, 609 (CA5 2021).

B On September 9, 2021, President Biden announced “a

new plan to require more Americans to be vaccinated.” Re- marks on the COVID–19 Response and National Vaccina- tion Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all em- ployers with at least 100 employees “to ensure their work- forces are fully vaccinated or show a negative test at least once a week.” Ibid. The purpose of the rule was to increase vaccination rates at “businesses all across America.” Ibid. In tandem with other planned regulations, the administra- tion’s goal was to impose “vaccine requirements” on “about 100 million Americans, two-thirds of all workers.” Id., at 3.

After a 2-month delay, the Secretary of Labor issued the promised emergency standard. 86 Fed. Reg. 61402 (2021). Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more em- ployees. There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely il- lusory. Id., at 61460. The Secretary has estimated, for ex- ample, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. Id., at 61461. The regulation otherwise operates as a blunt in- strument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and

4 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

Per Curiam

linemen face the same regulations as do medics and meat- packers. OSHA estimates that 84.2 million employees are subject to its mandate. Id., at 61467.

Covered employers must “develop, implement, and en- force a mandatory COVID–19 vaccination policy.” Id., at 61402. The employer must verify the vaccination status of each employee and maintain proof of it. Id., at 61552. The mandate does contain an “exception” for employers that re- quire unvaccinated workers to “undergo [weekly] COVID– 19 testing and wear a face covering at work in lieu of vac- cination.” Id., at 61402. But employers are not required to offer this option, and the emergency regulation purports to pre-empt state laws to the contrary. Id., at 61437. Unvac- cinated employees who do not comply with OSHA’s rule must be “removed from the workplace.” Id., at 61532. And employers who commit violations face hefty fines: up to $13,653 for a standard violation, and up to $136,532 for a willful one. 29 CFR §1903.15(d) (2021).

C OSHA published its vaccine mandate on November 5,

2021. Scores of parties—including States, businesses, trade groups, and nonprofit organizations—filed petitions for review, with at least one petition arriving in each re- gional Court of Appeals. The cases were consolidated in the Sixth Circuit, which was selected at random pursuant to 28 U. S. C. §2112(a).

Prior to consolidation, however, the Fifth Circuit stayed OSHA’s rule pending further judicial review. BST Hold- ings, 17 F. 4th 604. It held that the mandate likely ex- ceeded OSHA’s statutory authority, raised separation-of- powers concerns in the absence of a clear delegation from Congress, and was not properly tailored to the risks facing different types of workers and workplaces.

When the consolidated cases arrived at the Sixth Circuit, two things happened. First, many of the petitioners—

5 Cite as: 595 U. S. ____ (2022)

Per Curiam

nearly 60 in all—requested initial hearing en banc. Second, OSHA asked the Court of Appeals to vacate the Fifth Cir- cuit’s existing stay. The Sixth Circuit denied the request for initial hearing en banc by an evenly divided 8-to-8 vote. In re MCP No. 165, 20 F. 4th 264 (2021). Chief Judge Sut- ton dissented, joined by seven of his colleagues. He rea- soned that the Secretary’s “broad assertions of administra- tive power demand unmistakable legislative support,” which he found lacking. Id., at 268. A three-judge panel then dissolved the Fifth Circuit’s stay, holding that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority. See In re MCP No. 165, 2021 WL 5989357, ___ F. 4th ___ (CA6 2021). Judge Larsen dis- sented.

Various parties then filed applications in this Court re- questing that we stay OSHA’s emergency standard. We consolidated two of those applications—one from the Na- tional Federation of Independent Business, and one from a coalition of States—and heard expedited argument on Jan- uary 7, 2022.

II The Sixth Circuit concluded that a stay of the rule was

not justified. We disagree.

A Applicants are likely to succeed on the merits of their

claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Amer- icans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a

6 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

Per Curiam

vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health stand- ards” (emphasis added)); §655(c)(1) (authorizing the Secre- tary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.

The dissent protests that we are imposing “a limit found no place in the governing statute.” Post, at 7 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). Not so. It is the text of the agency’s Organic Act that repeatedly makes clear that OSHA is charged with regulating “occupational” haz- ards and the safety and health of “employees.” See, e.g., 29 U. S. C. §§652(8), 654(a)(2), 655(b)–(c).

The Solicitor General does not dispute that OSHA is lim- ited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qual- ifies as such a danger. We cannot agree. Although COVID– 19 is a risk that occurs in many workplaces, it is not an oc- cupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no

7 Cite as: 595 U. S. ____ (2022)

Per Curiam

different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable dis- eases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly ex- pand OSHA’s regulatory authority without clear congres- sional authorization.

The dissent contends that OSHA’s mandate is compara- ble to a fire or sanitation regulation imposed by the agency. See post, at 7–9. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically im- posed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). Contrary to the dissent’s conten- tion, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.” Post, at 10.

That is not to say OSHA lacks authority to regulate occu- pation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associ- ated with working in particularly crowded or cramped en- vironments. But the danger present in such workplaces dif- fers in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscrimi- nate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and ac- cordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).

In looking for legislative support for the vaccine mandate, the dissent turns to the American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. See post, at 8. That legislation,

8 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

Per Curiam

signed into law on March 11, 2021, of course said nothing about OSHA’s vaccine mandate, which was not announced until six months later. In fact, the most noteworthy action concerning the vaccine mandate by either House of Con- gress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021).

It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the man- date extends beyond the agency’s legitimate reach. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted).*

B The equities do not justify withholding interim relief. We

are told by the States and the employers that OSHA’s man- date will force them to incur billions of dollars in unrecov- erable compliance costs and will cause hundreds of thou- sands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32– 33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitaliza- tions. OSHA Response 83; see also 86 Fed. Reg. 61408.

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by

—————— *The dissent says that we do “not contest,” post, at 6, that the mandate

was otherwise proper under the requirements for an emergency tempo- rary standard, see 29 U. S. C. §655(c)(1). To be clear, we express no view on issues not addressed in this opinion.

9 Cite as: 595 U. S. ____ (2022)

Per Curiam

the people through democratic processes. Although Con- gress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply be- cause they work for employers with more than 100 employ- ees, certainly falls in the latter category.

* * * The applications for stays presented to JUSTICE

KAVANAUGH and by him referred to the Court are granted. OSHA’s COVID–19 Vaccination and Testing; Emergency

Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate au- tomatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.

It is so ordered.

_________________

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1 Cite as: 595 U. S. ____ (2022)

GORSUCH, J., concurring

SUPREME COURT OF THE UNITED STATES

Nos. 21A244 and 21A247

NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., APPLICANTS

21A244 v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

OHIO, ET AL., APPLICANTS 21A247 v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

ON APPLICATIONS FOR STAYS

[January 13, 2022]

JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed chal- lenges for every American. Or that our state, local, and na- tional governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing work- place safety, may mandate the vaccination or regular test- ing 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. This Court is not a public health authority. But it is charged with resolving disputes about which au- thorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

2 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

GORSUCH, J., concurring

* I start with this Court’s precedents. There is no question

that state and local authorities possess considerable power to regulate public health. They enjoy the “general power of governing,” including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. National Federation of Independent Business v. Sebelius, 567 U. S. 519, 536 (2012) (opinion of ROBERTS, C. J.); U. S. Const., Amdt. 10. And in fact, States have pur- sued a variety of measures in response to the current pan- demic. E.g., Cal. Dept. of Public Health, All Facilities Let- ter 21–28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law Ann. § 2164 (West 2021).

The federal government’s powers, however, are not gen- eral but limited and divided. See McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Not only must the federal gov- ernment properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separa- tion of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an exec- utive agency decisions “of vast economic and political sig- nificance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per cu- riam) (slip op., at 6) (internal quotation marks omitted). We sometimes call this the major questions doctrine. Gundy v. United States, 588 U. S. ___, ___ (2019) (GORSUCH, J., dis- senting) (slip op., at 20).

OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA. Approximately two years have passed since this pandemic began; vaccines have been

3 Cite as: 595 U. S. ____ (2022)

GORSUCH, J., concurring

available for more than a year. Over that span, Congress has adopted several major pieces of legislation aimed at combating COVID–19. E.g., American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate. Indeed, a majority of the Sen- ate even voted to disapprove OSHA’s regulation. See S.J. Res. 29, 117th Cong., 1st Sess. (2021). It seems, too, that the agency pursued its regulatory initiative only as a legis- lative “ ‘work-around.’ ” BST Holdings, L.L.C. v. OSHA, 17 F. 4th 604, 612 (CA5 2021). Far less consequential agency rules have run afoul of the major questions doctrine. E.g., MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994) (eliminating rate- filing requirement). It is hard to see how this one does not.

What is OSHA’s reply? It directs us to 29 U. S. C. § 655(c)(1). In that statutory subsection, Congress author- ized OSHA to issue “emergency” regulations upon deter- mining 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 such danger[s].” According to the agency, this provision supplies it with “al- most unlimited discretion” to mandate new nationwide rules in response to the pandemic so long as those rules are “reasonably related” to workplace safety. 86 Fed. Reg. 61402, 61405 (2021) (internal quotation marks omitted).

The Court rightly applies the major questions doctrine and concludes that this lone statutory subsection does not clearly authorize OSHA’s mandate. See ante, at 5–6. Sec- tion 655(c)(1) was not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s creation. Since then, OSHA has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals. See In re: MCP No. 165, 20 F. 4th 264, 276 (CA6 2021) (Sutton, C. J.,

4 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

GORSUCH, J., concurring

dissenting from denial of initial hearing en banc). As the agency itself explained to a federal court less than two years ago, the statute does “not authorize OSHA to issue sweep- ing health standards” that affect workers’ lives outside the workplace. Brief for Department of Labor, In re: AFL–CIO, No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to un- dertake a medical procedure that affects their lives outside the workplace. Historically, such matters have been regu- lated at the state level by authorities who enjoy broader and more general governmental powers. Meanwhile, at the fed- eral level, OSHA arguably is not even the agency most as- sociated with public health regulation. And in the rare in- stances when Congress has sought to mandate vaccinations, it has done so expressly. E.g., 8 U. S. C. § 1182(a)(1)(A)(ii). We have nothing like that here.

* Why does the major questions doctrine matter? It en-

sures that the national government’s power to make the laws that govern us remains where Article I of the Consti- tution says it belongs—with the people’s elected represent- atives. 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.

In this respect, the major questions doctrine is closely re- lated to what is sometimes called the nondelegation doc- trine. Indeed, for decades courts have cited the nondelega- tion doctrine as a reason to apply the major questions doctrine. E.g., Industrial Union Dept., AFL–CIO v. Ameri- can Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion). Both are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.

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