The Supreme Court has good reason to question the expansion of power in the executive branch. Agencies such as the Occupational Health and Safety Administration (OSHA) exercise broad authority, deciding policy questions that the constitutional Framers expected Congress to decide. As a result, presidents wield far more power than they should.

But the Court picked the wrong time and place to put the brakes on executive authority with its decision in NFIB v. Becerra, the case that involved OSHA’s rule for COVID vaccination or testing in the workplace. The Court acted unwisely—and inconsistently with past decisions.

As the dissenting justices observed, OSHA has been given broad power by Congress to protect employees and ensure “safe and healthful working conditions.” And workplaces have become a major source of COVID transmission.

The Court majority distinguished between OSHA authority to regulate risks to employee health that are specific to the workplace from more general risks to personal health. In this view, OSHA can protect coal miners from exposure to high levels of coal dust but not from catching COVID from a co-worker. But this is an artificial distinction and not one that has been required previously. OSHA protects workers from the hazard of faulty electrical wiring in their offices even though faulty electrical wiring is also a problem in people’s homes. Moreover, for many people, their greatest risk of catching COVID occurs while they are working.

Of particular importance is the fact that OSHA was responding to a grave risk to worker health, one that this country hasn’t seen in more than a hundred years. This is not the time to take a cramped view of OSHA’s authority to protect workers, especially when the OSHA mandate is backed by clear evidence of effectiveness and when testing and mask wearing is allowed as an alternative to vaccination.

Photo of David Orentlicher David Orentlicher

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme…

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme Court, and has served on many national, state, and local commissions.

A graduate of Harvard Medical School and Harvard Law School, Dr. O is author of numerous books, articles, and essays on a wide range of topics, including presidential power, affirmative action, health care reform, physician aid in dying, and reproductive decisions. Dr. O’s work has appeared in leading professional journals, as well as in the New York TimesTimeUSA TodayCNN Opinion, the Chicago Tribune, and other major newspapers.

Between 2002 and 2008, Dr. O served in the Indiana House of Representatives, where he authored legislation to promote job creation, protect children from abuse and neglect, and make health care coverage more affordable. His most recent book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive, draws on his experience with partisan conflict as an elected official and his expertise in constitutional law to discuss reforms that would address the country’s high levels of political polarization.