Here is what purports to be a 14 page response to the fine OSHA brief, filed last week. It asserts all sorts of nonsense, making political rather than legal arguments. It will fail.

Now, as promised — the one sentence (from a now 202 year long, unbroken line of USSCt. cases) that makes this so (the opposition fails to account in any manner for this federal principle, instead arguing that individuals may substitute their judgments on the matter — in places of interstate commerce employment — thus potentially thwarting the will of the electorate, and lawlessly so):

“…Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution are constitutional [and then, its powers are plenary]….”

— Chief Justice Marshall (1819)
M’Culloch v. Maryland.

Since OSHA’s authorizing legislation is anchored to the Constitution’s Commerce Clause, the agency has nearly carte blanche to deal with emergencies of health in any workplace (in any rational fashion). That OSHA chose to reduce the burden on small employers (under 100 employee shops) allows/leaves employees worried about COVID-19 outbreaks to “vote with their feet,” and sign up with larger employers. This is a long standing, well-vetted and quintessential aspect of reasonable, rational… federal regulation (see the first days of Title VII, in this regard — it exempted small employers in the very first days, and then phased them in — to compliance).

In sum, OSHA will prevail. And a ruling could come from the Supremes yet this week.

Onward, grinning….