Analysis & Commentary
While the public’s attention has been focused on the Supreme Court’s abortion and Environmental Protection Agency (EPA) decisions, some of the larger implications stemming from these rulings have gone largely unnoticed. Much of this has had to do with failing to adhere to the proper process for making new regulations.
If, as is currently predicted, the Republicans take control of both the Senate and the House of Representatives, President Biden and his staff may be tempted to follow the lead of President Obama after Republicans took control of the Senate during his presidency. Instead of seeking ways to compromise with the other party, Obama boldly declared that he would rule “with a phone and a pen” and proceeded to issue a string of presidential executive orders.
How did that work out for Obama? Not too well—13 of those executive orders were subsequently struck down by the Supreme Court, and not as some might expect by a conservative majority. All 13 were overturned unanimously in each and every case. All his efforts succeeded in doing was to create unnecessary and wasteful confusion, and provided a lot of lawyers additional work hours to charge for.
President Biden started issuing executive orders on his very first day in office and has issued a slew of them since. Most of these were less powerful in their reach than his sometimes fiery rhetoric proclaimed.
One exception that eventually ended disastrously was Biden’s order directing the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) regulating employer responses to COVID-19 in the workplace. In time, this was used to impose a massive mandatory vaccinations program that angered a large portion of the population and which was eventually struck down by the Supreme Court.
In this and other cases, the court has shown itself over the years to be a fierce protector of the regulatory safeguards embodied in the Constitution and embodied in laws passed by Congress. In fact, it is by tackling what is perceived to be regulatory overreach by the administrative branch that the High Court has sought to protect the essential role assigned to the legislative branch for being exclusively responsible for writing laws and by doing so, setting national policy priorities.
In the decision overturning OSHA’s vaccination order, the justices said the executive branch agency had overstepped its bounds by failing to apply the requirements of the Administrative Procedures Act, a law passed by Congress that requires federal agencies to subject any proposed regulation to a public notice and comments period, and examine what impact a new rule would have on the environment and small businesses. The process also allows those who oppose a new regulation the time they need to prepare possible legal challenges seeking to have it blocked in court.
The OSHA emergency standard did none of this because it wasn’t considered a formal regulation, but an order addressing an emergency situation (and formally expected to expire within six months, although it could be extended.) There is nothing new about the Supreme Court’s jaundiced view of these kinds of orders. Since OSHA began issuing ETS orders in the 1980s, five of the eight that were imposed were struck down by the court for this reason.
The recent Supreme Court decision yanking on the reins of the EPA addressed a different form of administrative overreach. In this situation, the court said the EPA had gone too far when making regulations by using them to create new national policy instead of using the regulatory process to carry out the wishes of Congress.
More Separation of Powers
The court determined that the EPA did not have the authority under the Clean Air Act to reorder the composition of the nation’s energy portfolio, as it had attempted to do in furtherance of the Obama administration’s self-generated Clean Power Plan, which Congress had not originated nor voted to approve.
The court’s majority decision stated that it “expects Congress to speak clearly if it wishes to assign to agency decisions of vast economic and political significance.” Instead, the Obama administration’s Clean Power Plan “effected a fundamental revision of the statute” in a way never intended by Congress. The plan also essentially adopted a cap-and-trade scheme for carbon, a course of action which Congress had consistently rejected.
Another court action that went little noticed by the news media is more important for what the justices decided not to do. The Supreme Court without comment declined to grant review of California’s law stripping truck owner-operators of their independent contractor status. The lawsuit, which was brought by the California Trucking Association, was of intense interest to many who work in logistics and freight transportation management.
The state law the court refused to review establishes a three-prong “ABC” test to determine whether someone working in California is an independent contractor or employee. The sticking point is the new “B” section, which changed the previous definition by declaring that someone cannot be considered an independent contractor if they are in the same line of business as the employer. Thus, no truck driver can be considered an independent contractor if they lease their truck and their services to a trucking company.
The change had been long sought by the Teamsters and other union groups which have sought to organize these truck drivers for years but could not because of their legal status as independent contractors. This unionization campaign later extended to include ride share drivers who work for Uber and Lyft as well as home delivery services like DoorDash.
Not only does the state law virtually wipe out almost a century-long traditional trucking practice, it is being seriously considered by other states and was included in the sweeping federal labor law reform legislation that the Democrats so far have failed to get passed.
As we have seen, the Supreme Court’s decisions can turn out to be of vast importance, impacting the lives of all Americans in one way or another. Throughout history some of these decisions have provoked fierce emotions and sometimes generated violent political blowback.
The heated language, threats of violence and scenes of rageful civil disobedience that followed the decision overturning Roe vs. Wade are nothing new. Some of us still remember what happened after the Supreme Court struck down school segregation in 1956, when mobs gathered and screamed at the first Black students entering schools, state and local politicians embraced a strategy they called “massive resistance” and there were calls for the impeachment of justices, or worse.
Employers need to keep an eagle eye out for what the court does next, and remain aware even when you think they are wrong, the justices are applying rigorous, thoughtful analysis to the cases that come before them, regardless of what you may hear shouted from the sidewalks in front of their homes or hear brayed on partisan television shows.
