THE FUTURE OF THE VACCINE MANDATE: AN Wesley Carter ANALYSIS OF THE HISTORY AND CASE LAW RELEVANT TO OSHA’S EMERGENCY TEMPORARY STANDARD

The Future of the Vaccine Mandate: An Analysis of the History and Case Law Relevant to OSHA’ s Emergency Temporary Standard

Wesley Carter

Edited by Westley Hall

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a mandate-or-test Emergency Temporary Standard requiring workers at businesses with more than 100 employees to be fully vaccinated or submit to weekly testing by January 4, 2022. Within hours, dozens of litigants had filed actions in federal court disputing the mandate. In the intervening weeks, these disputes were consolidated and, via a lottery-selection process, transferred to the Sixth Circuit Court of Appeals where they await further action. This high-profile litigation once again places the national spotlight on a fundamental tension between federal regulations and the rights of private companies. Although the vaccinemandate line of cases implicates a litany of statutory and Constitutional issues from the Administrative Procedure Act to the 10th Amendment itself, this paper analyzes the issue from the perspective of federal employment and regulatory law. This analysis includes a discussion of the status of the once-abandoned nondelegation doctrine which seems poised to make a comeback in the OSHA case with farreaching consequences for federal regulations in the workplace and beyond.

In the wake of Citizens United v. FEC, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Burwell v. Hobby Lobby, will the vaccine-mandate line of cases become the latest vehicle for the Roberts Court to curtail the reach of federal regulations and expand the rights of private business? In its broadest terms this paper examines the history and case law relevant to the vaccine mandate in an effort to illuminate the outlook for the OSHA case.

I. INTRODUCTION: PRELIMINARY LITIGATION

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) announced a mandate-or-test Emergency Temporary Standard in response to the ongoing Covid-19 pandemic. Working with the Biden administration, OSHA’s mandate required workers at businesses with more than 100 employees to be fully vaccinated or submit to weekly testing by January 4, 2022. Within hours, dozens of litigants had filed actions in federal court disputing the mandate.185 Although standard procedure in such situations is for courts to wait until these disputes can be consolidated and transferred to a single court, the Fifth Circuit Court of appeals jumped at the opportunity to weigh in on the mandate. Eight days after OSHA issued its Emergency Temporary Standard, on November 12th, the U.S. Court of Appeals for the Fifth Circuit surprised many legal observers by issuing an order staying the mandate, effectively barring OSHA from enforcing or otherwise implementing its ETS as planned.186 Although it is not uncommon for courts to issue stays when litigation is pending, the Fifth Circuit’s move struck many as premature by virtue of the fact that the case had not yet been consolidated and assigned to a court. The decision also raised accusations of partisanship from observers who noted that the Fifth Circuit had gone to great lengths to prevent a stay on Texas’ SB8 law restricting abortion rights, which many believe raises similar constitutional concerns as the vaccine mandate.187 Controversy aside, the Fifth Circuit’s stay did halt preparations for the mandate as the country waited for the case to be consolidated. Once all cases in the vaccine-mandate line of litigation had been consolidated, a lotteryselection process determined that the conservative Sixth Circuit Court of Appeals would be assigned the case, to the chagrin of supporters of the OSHA mandate. Despite its reputation as a conservative court, one of the Sixth Circuit’s first acts upon receiving the case was to lift the Fifth Circuit’s stay on the ETS.188 Although the Fifth Circuit’s stay has now been lifted, its ruling provides a preview of how conservative-leaning justices are likely to view the case as it makes its way through the appellate process and potentially to the Supreme Court. This raises the question, what arguments swayed the Fifth Circuit to block OSHA’s Emergency Temporary Standard so quickly? According to the Fifth Circuit’s 22-page ruling on the issue, it was the decision of the court that there were several reasons that the ETS ought to be enjoined.189 The first dealt with the administrative procedures required for OSHA to issue an Emergency Temporary Standard. Under the Administrative Procedures Act, OSHA must demonstrate that the proposed regulation is vital to protect workers from a “grave danger” from “substances or agents determined to be toxic or physically harmful.” The Fifth Circuit denied OSHA’s claim that the Covid-19

185 Jack Healy & Lauren McCarthy. ‘See you in Court’: G.O.P. Governors Express Outrage and Vow to Fight Biden’s Vaccine Requirements, New York Times, (September 21, 2021) https://www.nytimes.com/2021/09/10/us/republicangovernors-mandate-reaction.html

186 BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845 (5th Cir. 2021)

187 Ian Millhiser, Are Biden’s New Vaccine Requirements Legal? VOX (Sep 11, 2021, 8:30am), https://www.vox.com/22666625/biden-vaccine-mandate-covid-19-supreme-court-osha-constitution-legal

188 Id. 189 BST Holdings, LLC v. Occupational Safety and Health Administration, No. 21-60845 (5th Cir. 2021)

pandemic meets this “grave danger” standard. In the court’s view, the virus does not threaten the lives of the majority of those who contract it, so it should not be considered a “toxic or physically harmful” agent and/or substance. Additionally, the court noted that the virus is widespread throughout the nation and world as a whole, which it deemed significant because the virus’ wide reach means it is not a workplace-specific danger.190 Thus, the first layer of the court’s analysis concluded that, in light of the administrate procedures that OSHA must follow to issue an emergency standard, the department failed to meet their burden to prove that the Covid19 situation is sufficient to warrant an Emergency Temporary Standard. Moving on from its characterizations of the Covid-19 virus, the next aspect of the Emergency Temporary Standard with which the court took was the vaccination requirement.191 Interestingly, the court was concerned about both the overinclusiveness and underinclusiveness of the Emergency Temporary Standard. In terms of its overinclusiveness, the court criticized the Emergency Temporary Standard for defining the employees to which it applied based on the size of the company they worked for (companies with 100 employees or more) instead of by their individual level of danger. The degree of danger posed by Covid-19 varies greatly from individual to individual for reasons such as proximity to Covid-19 hotspots, membership in highrisk groups (elderly individuals, people with respiratory conditions, etc.), and other relevant medical details such as whether an individual has contracted Covid-19 before. Because the Emergency Temporary Standard distinguishes between employees based only on company size, the Fifth Circuit determined that OSHA’s Emergency Temporary Standard was overbroad for applying to workers in relatively low-risk situations while failing to cover workers with high-risk situations who belong to smaller companies. In addition to these procedural criticisms of OSHA’s ETS, the Fifth Circuit also hinted at more fundamental constitutional issues concerning the non-delegation doctrine. In the following section, this paper will examine the constitutional questions raised in the OSHA case, providing an overview of the judicial history and case law to provide context for the current debate over OSHA’s ETS. Finally, I will use this case law to determine the likely outlook of the OSHA case.

II. RELEVANT HISTORY AND CASE LAW

A. The Constitutionality of Vaccine Mandates

Since the idea of mandating the vaccine began gaining traction in public discourse, critics have questioned the constitutionality of vaccine mandates. Despite the controversial nature of the topic, the case law regarding governments mandating vaccines is relatively clear. In the 1905 case Jacobsen v. Massachusetts, the Supreme Court ruled that a health board’s mandate that schoolchildren receive the smallpox vaccine passed constitutional muster. Chief Justice John Harland wrote in his decision, “The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint…there are manifold restraints to

190 Id. 191 Id.

which every person is necessarily subject for the common good.”192 Since 1905, this principle that, in certain situations, the common good can constitutionally be prioritized over individual freedom has passed the test of time. The court’s decision in Jacobsen v. Massachusetts still stands to this day, and many state and local governments mandate vaccines without any issues. Although the Roberts court has looked comfortable overturning precedents in the past, legal scholars do not believe that Jacobsen v. Massachusetts is a likely target for this judicial activism. When the Supreme Court heard the case Roman Catholic Diocese of Brooklyn v. Cuomo last year, Justice Gorsuch himself characterized Jacobson v. Massachusetts as a modest decision, noting that it “didn’t seek to depart from normal legal rules during a pandemic.”193

B. The Constitutionality of Emergency Federal Workplace Regulations

Just because the constitutionality of vaccine mandates is unlikely to be a battleground in the impending litigation over OSHA’s Emergency Temporary Standard does not mean constitutional issues will not still be a deciding factor. The government in general may have the power to mandate vaccinations, but the precedent set in Jacobsen v. Massachusetts does not apply to every government actor. In this case, the Labor Department and the Occupational Safety and Health Administration are only empowered to act within the limits of the powers delegated to them by Congress. The terms of this delegation of power are laid out in the Occupational Safety and Health Act of 1970, which is the source of the “grave danger” standard referenced in the Fifth Circuits ruling.194 Of course, the Fifth Circuit was not awarded the OSHA case so their ruling is not the final say on the matter. As the case is litigated in the Sixth Circuit Court of Appeals, advocates of the Emergency Temporary Standard will have to justify its procedural propriety under the Occupational Safety and Health Act of 1970. Under normal circumstances, this would not be a heavy burden of proof; the act gives the Department of Labor broad power to regulate issues of safety. However, to fully exercise these powers OSHA and the Department of Labor must complete a thorough review process consisting of various public comment periods and other opportunities for stakeholder input. All told, this review process takes well over 7 years to complete on average. Because of the pressing nature of the Covid-19 pandemic, OSHA is attempting to bypass this review process through a seldomused exception for emergency situations.195 Because this exception has only been used infrequently, the case law on it is limited. Prior to the pandemic, the last use was in 1983 by the Reagan administration in an attempt to reduce asbestos in the workplace. This case, Asbestos Information Association v. OSHA, ended up in the Fifth Circuit Court of Appeals which ruled against OSHA’s emergency standard.196

192Jacobson v. Massachusetts, OYEZ, https://www.oyez.org/cases/1900-1940/197us11 (last visited March 18, 2022).

193 Roman Catholic Diocese of Brooklyn v. Cuomo, OYEZ, https://www.oyez.org/cases/2020/20A87 (last visited May 11, 2022).

194 OSH Act of 1970, 29 U.S.C §§ 651-660 (1970). 195 Szymendera, Scott, Occupational Safety and Health Administration (OSHA): COVID-19 Emergency Temporary Standards (ETS) on Health Care Employment and Vaccinations and Testing for Large Employers, CONGRESSIONAL RESEARCH SERVICE, (March 24, 2022), https://crsreports.congress.gov/product/pdf/R/R46288.

196 U.S. Asbestos Information Ass'n v. O.S.H.A, 727 F.2d 415 (5th Cir. 1984)

Despite the ruling in Asbestos Information Association v. OSHA, the case law regarding Emergency Temporary Standards actually looks relatively encouraging for advocates of the vaccine mandate. Even the Fifth Circuit’s ruling in the Asbestos Information Association v. OSHA case is largely favorable because its criticisms of the 1983 Emergency Temporary Standard are quite narrow; overall, the ruling holds that OSHA has a good deal of latitude when declaring emergency standards. For example, the court cautioned against judicial actors interfering with Department of Labor and OSHA decisions regarding what constitutes a grave danger. As the Fifth Circuit’s ruling notes, “Gravity of danger is a policy decision committed to OSHA, not to the courts, ” a statement that now takes on a note of irony in light of the modern Fifth Circuit’s recent decision to stay the ETS. 197 This irony highlights the fact that, although the case law on the issue may appear favorable to advocates of the vaccine mandate, it is no guarantee that courts, especially those with a strong conservative slant, will apply these precedents as expected. Additionally, although the court’s ruling in Asbestos Information Association generally suggests that OSHA should have some discretion on declaring Emergency Temporary Standards, this does not mean they do not still have to contend with a strict burden of proof, especially on the issue of whether the Emergency Temporary Standard is “necessary”. The Reagan administration’s OSHA standard failed in large part because advocates of the ETS could not sufficiently demonstrate that alternatives to the ETS had been considered. Because the petitioners were able to show that policies like requiring employers to give employees respirators could be viable alternatives, the court determined OSHA had not met its burden to prove an ETS was necessary. When it comes to the vaccine mandate, advocates might very well run into similar problems if they cannot meet the burdens imposed by the court.

C. The Nondelegation Doctrine

Even if OSHA can prove that the Covid-19 pandemic meets the burden to justify the use of an Emergency Temporary Standard as per the Occupational Safety and Health Act of 1970, this is not enough to ensure the vaccine mandate passes constitutional muster. In fact, recent moves by the Supreme Court have led legal scholars to question if the Occupational Safety and Health Act of 1970 itself might be at risk of judicial review from this case. The basis for these concerns is a supposedly arcane legal concept known as the Nondelegation Doctrine. Prior to the 1930’s, the question of whether or not it was constitutional for Congress to delegate its powers to federal agencies was an active topic of debate. However, the legal community gradually came to the conclusion that delegation was to be allowed under the Constitution. This idea was solidified in the Supreme Court’s 1989 ruling in Mistretta v. United States. In the case, John Mistretta, a man convicted of selling cocaine, sued the government alleging that the Sentencing Reform Act of 1984, which created the United States Sentencing Commission to establish more concrete sentencing guidelines, violated the Constitution by delegating “excessive legislative powers” to the Commission. The court denied Mistretta’s claim, ruling that Congress was within its Constitutional authority to delegate regulatory power to federal agencies so long as it did so by establishing, “an intelligible principle to which the person or body authorized… is directed to conform.” In this ruling, the court strongly suggested that courts should generally default to Congress’ authority on this matter.

197 Id.

The thinking behind this was that, in the words of the court, “Congress simply cannot do its job absent an ability to delegate power under broad general directives.”198 Although many believed Mistretta laid to rest the nondelegation debate for good, there appears to be growing interest among conservative justices in revisiting the issue. In June of 2019, the Supreme Court heard the case Gundy v. United States, which questioned whether section 42 U.S.C. § 16913 of the Sex Offender Registration and Notification Act violates the nondelegation doctrine. Although the court ultimately ruled that it does not, all four Republicans (Kavanaugh was not yet a justice) voted to restrict the regulatory power of federal agencies.199 In Justice Gorsuch’s dissent, he proposed an alternative to the standard set by Mistretta v. United States that delegation is proper only if Congress’ directives are, “sufficiently definite and precise to enable Congress, the courts, and the public to ascertain whether Congress’s guidance has been followed.”200 Although the way Gorsuch and his fellow conservatives hope to apply this standard is currently unclear, it could very well become a defining issue in the OSHA case. In the Fifth Circuit’s decision to stay the mandate, they noted the petitioners’ request for the courts to strike down the Emergency Temporary Standard using the nondelegation doctrine. Although this claim would get little traction under the precedent set in Mistretta v. United States, that could be a very different story if Gorsuch’s alternative standard from the Gundy dissent were to take effect. Four of the Republicans on the Supreme Court have already signaled their support of Gorsuch’s alternative standard through their votes in Gundy v. United States, leaving Justice Kavanaugh as the only unknown. However, even though Kavanaugh was not on the court for Gundy, he has gone out of his way to hint at his support for the conservative push to revive the nondelegation doctrine. In late 2019, the Supreme Court declined to hear the case Paul v. United States which related to a very similar issue of Congressional delegation as Gundy v. United States. In a surprising move, Justice Kavanaugh published an opinion in spite of the court’s decision to pass on Paul. In it, he makes clear his support for Justice Gorsuch’s stance on the delegation of regulatory power to federal agencies. In fact, Kavanaugh’s Paul opinion took a more extreme stance against the nondelegation doctrine than even Gorsuch’s Gundy dissent.201 Assuming all five justices maintain their positions, there is little question that conservatives have the votes on the Supreme Court to overturn the precedent set in Mistretta v. United States, bringing back the once-abandoned nondelegation doctrine and fundamentally challenging the way federal regulatory agencies operate. Why are conservatives so interested in reviving the nondelegation doctrine? Aside from its implications for the OSHA case, advocates of nondelegation believe it is important to maintain the separation of powers. Constitutionally, Congress is supposed to wield legislative power, not the President or the executive branch. When Congress delegates power to regulatory agencies, critics argue they give the executive branch too much lawmaking power.

198 Mistretta v. United States, 488 U.S. 361 (1989)

199 Gundy v. United States, OYEZ, https://www.oyez.org/cases/2018/17-6086 (last visited May 11, 2022).

200 Id.

201 Paul v. United States, OYEZ, https://www.oyez.org/cases/1962/19 (last visited March 11, 2022).

Another key motivation for conservatives is that the delegation of Congressional powers to regulatory agencies is the basis for many federal regulations. Reviving the nondelegation doctrine would not only spell defeat for OSHA’s vaccine mandate, it could also restrict the power of every federal agency to regulate the workplace, environmental policy, and countless other areas. When it comes to the OSHA case, the basic concept of government regulation could be on trial.

III. ANALYSIS AND CONCLUSION: THE OUTLOOK FOR THE VACCINE MANDATE

Although the Occupational Safety and Health Administration’s move to mandate vaccines in the workplace was dealt a swift blow by the Fifth Circuit Court of Appeals, the case is far from over. Especially now that the Sixth Circuit has lifted the stay imposed by the Fifth Circuit, there are any number of ways the vaccine line of cases could play out. As we have seen, OSHA and the Biden administration appear to have clear constitutional precedent on their side when it comes to the general concept of mandating vaccines. For over 100 years, the standard set in Jacobsen v. Massachusetts has given government actors authority to require vaccination. However, just because vaccine mandates themselves pass constitutional muster does not mean OSHA’s Emergency Temporary Standard is in the clear. Advocates must first contend with procedural issues involved in OSHA’s bypass of the standard review process for new workplace regulations. Again, the case law appears to be on the side of the defendants, but the precedent on this issue is nowhere near as clear as Jacobsen v. Massachusetts. The Fifth Circuit’s ruling in Asbestos Information Association v. OSHA appears to recognize OSHA’s power to decide when an Emergency Temporary Standard may be needed, but it does not definitively settle the issue. The Fifth Circuit ended up ruling against OSHA in the 1980s, and the modern Fifth Circuit similarly ruled against OSHA’s mandate in a decision that seems at odds with the case law from Asbestos Information Association v. OSHA. Realistically, although the precedent appears to favor the defendants, the Asbestos Information Association ruling is not clear enough to guarantee the vaccine mandate will pass muster, especially with the strong conservative leaning of the Sixth Circuit and the federal judiciary as a whole. Even if OSHA does clear this procedural burden, advocates are weary of this case’s potential to become the latest vehicle for the Roberts court to curtail federal regulatory control. If the court seizes on this case to reverse decades of precedent regarding the delegation of Congressional powers, the entire system of federal regulatory agencies could be in danger. Although some believe this would be a beneficial step to restore the separation of powers, it would undoubtedly change government regulation as we know it. Ultimately, there are several areas of concern for advocates of the Biden administration’s vaccine mandate, but this does not mean all hope is lost. The history and case law set by Jacobsen v. Massachusetts, Asbestos Information Association v. OSHA, and Mistretta v. United States provides a strong legal argument in favor of OSHA’s emergency temporary standard. Whether this argument will be strong enough to win over conservatives on the court remains to be seen, especially in light of recent posturing by conservatives in the federal judiciary. If conservatives were to use this case as an opportunity for judicial activism, it could have implications that last far after the Covid-19 pandemic is a thing of the past. To put it simply then, what is the outlook for OSHA’s vaccine mandate? Right now, it is anyone’s guess. A purely objective look at the case law appears to support the mandate, but the

current judicial landscape complicates matters. The only thing we know for sure is that this case will be an important indicator of whether the federal government will maintain regulatory power over employers or whether conservatives in the judiciary will decide the time for judicial activism on the issue has arrived.