Robert Alt, Buckeye Institute CEO, Q&A

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Robert Alt, Buckeye Institute CEO, Q&A
Robert Alt was the lead attorney in Phillips v. OSHA. Courtesy | The Minnesota Sun

Robert Alt, president and CEO of the Buckeye Institute, was the lead attorney in Phillips v. OSHA, the case in which the U.S. Supreme Court issued a stay preventing the Occupational Safety and Health Administration’s COVID-19 vaccination mandate from going into effect on Jan. 13. 

 

Alt spoke at Hillsdale on Feb. 16.

 

What advice do you have for Hillsdale students who are interested in going into law?

 

I think part of it is you need to decide what it is you wish to do in the law. If you’re wanting to do something like public interest law or do work in legal challenges related to the scope and the authority of the administrative state, my recommendation would be a couple of things. 

Try to maximize your chance of getting a good judicial clerkship. I think that’s invaluable experience, and it is, in addition to learning a great deal in a short amount of time about the law working for a judge, it also ends up being a key credential that ends up being prized by appellate litigators, particularly if it’s a court of appeals clerkship or a Supreme Court clerkship. While you can get a clerkship if you’ve attended any accredited law school, there are certainly some that have a greater success rate with regard to placements than others.

As I would say, if you’re interested in these sorts of issues, you should consider public interest law. It really creates unique opportunities to be involved in significant constitutional and statutory cases at a level that’s very difficult to do in other contexts. Frequently you’re able to get into court to have a more significant role in brief writing than you might have working at a large firm, even. Certainly, in terms of being able to actually get in and make arguments, it provides opportunities to work on really interesting and impactful cases.

 

What does the Buckeye Institute do?

 

Buckeye is a state-level think-tank that often does public interest litigation, so we work predominantly on economic and legal policy questions. We’re focused on those generally speaking at a state level, particularly Ohio, but we work in states across the country. For instance, we have an economic research center that does dynamic analysis of state budgets and related questions, and we’ve saved taxpayers in the ballpark of $3.5 billion based upon our research being adopted, so that’s the economic side. We do quite a bit on criminal justice policy. We’ve won international awards for our work in Ohio on criminal justice policy. We also engage in public interest litigation.

 

What was your role in the OSHA case?

 

We had two companies who were very concerned about the application of this rule to their businesses and wished to sue. We filed a lawsuit in the Sixth Circuit Court — the court covering Michigan, Ohio, Tennessee, and Kentucky — challenging the rule and asking the court to issue a stay against the rule. In this type of an OSHA challenge, if cases are filed in more than one circuit, then by random drawing they select what circuit the cases get transferred to. 

There were cases filed in every federal circuit in the country with the exception of the circuit called the Federal Circuit, and when the random drawing occurred, the Sixth Circuit, our circuit, ended up getting the random draw. When that happened, Buckeye was the first firm to go ahead and request, rather than having three judges hear the case, to have all 16 judges of the court of appeals hear the case in a process called initial en banc. The court deadlocked 8-8 as to whether they should take it as an initial en banc case — as to whether all 16 judges should hear it as an initial matter — and the chief judge of the circuit, Chief Judge Sutton, issued a very lengthy and detailed opinion on why it is that they should and why it is that a stay should be granted. That opinion ultimately was heavily relied upon by the United States Supreme Court when it ultimately issued its stay. 

Following a decision by the three-judge panel, which lifted a stay that was in place in the case, we were the first petitioners to file in the United States Supreme Court, asking them to stay the case, and ultimately they agreed with us that OSHA lacked the regulatory authority to mandate vaccines for all employers with 100 or more employees.

 

What was your argument in the OSHA case?

 

Ultimately, this is not a question of whether vaccines are good or bad policy. The question is whether or not OSHA as a regulatory agency has the authority to mandate this for all employers with 100 or more employees. So you begin with the fundamental issue that the federal government does not have the general police power. States have the ability to pass regulations for health and safety. Generally speaking, the federal government doesn’t, and so they sought to do this through OSHA, but OSHA’s authority is not unlimited authority. They have the authority to promulgate rules that create safe workplaces, and the Supreme Court ultimately found that this regulation exceeded OSHA’s authority, that this really wasn’t an occupational regulation. 

It fundamentally violated something like the major questions doctrine the Supreme Court has laid down: it affected a significant political or economic decision, and if Congress had intended OSHA to be able to do something like the vaccine mandate, it would have clearly given OSHA the authority to do so. Congress had not done so, so it was impermissible for OSHA to regulate in that space.

 

Did you agree with the Supreme Court’s reasoning in granting the stay?

 

They began with the major questions doctrine. That was actually our lead argument in the case — again, the idea that Congress had not granted the authority. This was a significant question that affected a large swath of the economy, and they relied extensively on authority that we cited for those propositions. Subsequent to the Supreme Court ruling on that matter, the Biden administration went ahead and withdrew the emergency temporary standard rule. The OSHA vaccine mandate functionally ended. Otherwise, this was just a stay, so it would have gone back to the Sixth Circuit so they could consider the merits of the case. The Biden administration essentially threw in the towel based on the fact that the Supreme Court said we were likely to win on the merits.

 

Which Supreme Court Justice do you align with most philosophically?

 

I would probably have to say Justice Clarence Thomas. He is the most principled justice on the court, so I find myself in very frequent agreement with him, and if at any point I’m in disagreement with him, I find myself needing to double check how it is that I’ve approached the question.

 

What is your newest case?

 

The District of Columbia has issued a rule requiring restaurants and bars to verify the vaccination status of their patrons before they can enter, as well as a mask requirement in those establishments. Eric Flannery owns a restaurant, Big Board, in the Capitol Hill area, and he had issued a statement saying all are welcome in his restaurant. Following this, he was subject to a number of regulatory visits, and the city ended up suspending both his operating license and his liquor license for failure to enforce the vaccine mandate and the mask mandate at his establishment. Subsequently, the mayor reversed course and ended up withdrawing the vaccine mandate and announcing the mask mandate would end at the end of this month. Notwithstanding that, the Big Board is still closed by these agencies, and the Buckeye Institute is representing Mr. Flannery seeking to get his restaurant reopened.

At this point we’re presently trying to see if we can get the agencies to respond to common sense and to enforce common sense. If not at that point we’ll file in court, but we have not done so yet.

 

What opportunities do you have for Hillsdale students to get involved?

 

We take both undergraduate and law students as interns. We do it year-round, but obviously for most people who are students, unless they happen to be students in the Columbus area, it’s easier to do so in the summer, and our summer program is a bit more robust. We have a speaker series among other things, a number of distinguished speakers from around the city to talk about public policy, law, etc., but it is a very substantive internship. 

We run a very lean organization, and so we genuinely rely heavily on the interns to be able to do substantive work. This is not a coffee and photo-comping sort of internship. This is doing substantive research, sometimes drafting and other functions that have the potential to have impact on some of the policy work that we’re doing and potentially on the litigation work as well, particularly for those who are law students and might have legal research capabilities. If you’re trying to decide if this is something that would be a good fit for you, whether it’s law school, or whether as a student going in that direction, I think it’s a great program.