This week the Supreme Court published a decision that concluded a chapter where OSHA returned to the broader public consciousness. In front of the court was the constitutionality of the vaccine mandate delivered through the Operation Safety and Health Administration. Let’s remember that OSHA was created in 1970 “to ensure safe and healthful working conditions for workers by setting and enforcing standards and by providing training, outreach, education and assistance.”
I fully agree that having an organization focused on occupational health is a good idea. I’m just not sure OSHA is actually the right group to do it. Let me explain.
In order to meet any specific need in a market lots of things need to collectively come together. The essay I, Pencil does a great job showing how even simple products from market economies depend on a web of thousands of activities. Having a consolidated body provide the services of OSHA is a good idea, but that doesn’t mean the government has to provide that service.
By the time OSHA was created in the 1970s workplace safety had already been improving. Just looking at the broad brush strokes in the late 1960’s and early 1970’s we saw a shift from American manufacturing jobs to those requiring higher skill and less manual labor. Thanks to a law passed in 1908 workers had the ability to sue their employers for damages if they were injured in the workplace.
This quote from the US Department of Labor has a crucial flaw:
“On December 29, 1970, President Richard Nixon signed into law the Williams-Steiger Occupational Safety and Health Act, which gave the Federal Government the authority to set and enforce safety and health standards for most of the country's workers.”
Did the American people or the States ever give the federal government the ability to claim the authority to govern occupational health and safety? If so, wouldn’t safety be pretty prominent in the constitution?
Actually the word Safety only appears once in the document in Article 1 Section 9 and that clause deals with Writs of Habeas Corpus...
But Jacob, the preamble talks about the general welfare...
Yes, the preamble does, but the document also specifically calls out that only the powers granted in the document are actually given. Otherwise they’re reserved to the states or the people respectively.
So, where does OSHA’s authority supposedly come from?
It comes from the Commerce Clause, which reads:
Congress shall have power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”
Our modern understanding hinges on the word regulate. Today the word sound likes it’s used to control things, but in the late 1700’s that was not the understood definition... besides, if the founders intended the federal government to control interstate commerce they could have said... control interstate commerce.
Regulate in this context, means to ensure that goods and services are able to regularly travel across state lines.
I don’t quite understand the authority to ensure that goods and services aren’t being taxed as they cross state lines turned into the ability to regulate safety in every office, factory, and personal home (if registered as a business) across the country.
Hopefully at some point a case will head to the Supreme Court where the justices can help explain that one to me, and the rest of the American public.