By John Grimm

Last week’s ruling in National Federation of Independent Business v. OSHA[1] was big news. The Court stayed the enforcement of OSHA’s rules requiring employers with more than 100 employees to be vaccinated against COVID-19, or else wear a mask and take a weekly test. Technically, the Court didn’t strike down the rules, but it found a strong likelihood of success on the merits (necessary for any stay of an agency rule pending review) which makes it difficult to envision any other result when the merits are finally heard.

The majority opinion—written per curiam so we don’t know the author—focuses on OSHA’s statutory authority. OSHA is empowered to promote “safe and healthful working conditions” by enacting rules that are “reasonably necessary or appropriate to provide safe or healthful employment.”[2]  The majority reasoned that COVID-19 is a universal hazard, not a workplace hazard, and held that OSHA’s mandate does not permit it to regulate public health crises just because they happen to affect workplaces.  In dissent, Justice Breyer examined the same statutory authority and administrative record to argue that the risk of COVID exposure is a workplace hazard that OSHA was entitled to regulate against.

There could be a robust academic debate over the majority and dissent’s arguments, but the most interesting aspect about the opinion for the future of administrative law is Justice Gorsuch’s concurrence.  All of the opinions recognized that agencies only possess power that Congress grants them, but Justice Gorsuch took the opportunity to elaborate on a particular nuance to that rule which he has written on before: the major questions doctrine.

By Derek Stikeleather

Since Maryland’s formal adoption of the Daubert standard for admitting expert testimony in Rochkind v. Stevenson, 471 Md. 1 (2020), many Maryland judges and practitioners have sought more specific guidance on how to apply our new standard. Among the many questions, what weight do Daubert cases from outside Maryland hold? And how important are the official Advisory Committee notes for Federal Rule 702 now that Maryland—by adopting the standard that federal courts use to construe FRE 702—has essentially adopted FRE 702?