10 November 2021

Biden’s Vaccine-or-Test Mandate in Legal Limbo

De Tocqueville famously observed that “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Our hyperpolitical age calls for a codicil: practically any kind of question sooner or later turns into a political question. The field of  public health is not immune, especially since the onset of the pandemic. And so the COVID-19 vaccine, a medical marvel of the first order, has in due course become the subject first of political and then legal controversy. Several states and businesses brought suit against the Biden administration’s mandate that large employers require vaccinations or weekly testing, and a federal appeals court has issued a stay blocking the mandate. As if the stakes in this litigation weren’t high enough, the case could turn into a showdown not only over vaccination, but over the power of regulatory agencies in the United States more generally.


In September, President Biden directed the federal Occupational Safety and Health Administration (OSHA) to develop a rule requiring companies with more than 100 employees to require COVID vaccinations or weekly testing. Normally, rules with the force of law must go through a notice-and-comment process that can be laborious and time-consuming:, it takes the average OSHA health and safety standard more than seven years to pass from idea to reality, according to a 2012 Congressional Research Service study. In this instance, OSHA is acting under a special statutory provision that permits it to promulgate an Emergency Temporary Standard (ETS) without going through notice and comment. An ETS can be issued only when “necessary to protect employees” from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” As the name suggests, it is meant to be temporary, and should be replaced by a permanent rule within six months.

OSHA issued the vaccine mandate last Thursday, November 4, nearly two months after Biden’s announcement. The ETS took so long in part because it is so long: 154 single-spaced pages containing more than 150,000 words. The operative provisions of the rule only take up around four pages. The rest — the “preamble,” in American administrative law jargon — justifies the ETS vis-à-vis the statutory standards and explains the particular choices the agency made. OSHA characterizes COVID-19 as a grave danger specifically to unvaccinated workers and estimates that its mandate would prevent more than 6,500 deaths and over a quarter million hospitalizations. The ETS is also more tailored than the blanket mandate hinted at in September: there are carve-outs for those working from home and out of doors as well as available exemptions on religious or medical grounds. The attention OSHA lavished on the emergency standard reflects the agency’s determination to put out a measure that could withstand the legal challenges it was sure to face.

Legal Challenges

Nor did it not take long for the challenges to come. Lawsuits to block the mandate were filed in four federal appeals courts the day after the ETS was issued. All told, twenty-six states number among the challengers, along with several businesses and other groups. Pursuant to the rules for multi-circuit litigation, the cases will be consolidated and ultimately resolved by a single appeals court, to be chosen by lottery. But the Court of Appeals for the Fifth Circuit granted an emergency motion to stay enforcement of the ETS pending review, for the reason that “the petitions give cause to believe there are grave statutory and constitutional issues” at stake.

What are these issues? The petitioners argue that the mandate is not “necessary” to combat a “grave danger” within the meaning of the statute, and that the COVID-19 virus is not a “toxic substance or agent” within the meaning of the statute. With respect to the necessity of the mandate, petitioners claim that a vaccine-or-test mandate is both overinclusive and underinclusive: overinclusive, for instance because some subject to the mandate do not pose risks of spreading COVID (e.g., because they have been previously infected), and underinclusive, for instance because non-employees in the workplace and can pose risks of COVID spread (e.g., customers). More generally, the petitioners paint the mandate as a public health measure masquerading as an occupational health and safety standard. The workplace, according to the petitioners, “is being used as a pretext” for the much broader goal of increasing vaccinations generally, an objective that lies outside of OSHA’s competency.

The arguments rooted in the statute, if accepted, would be sufficient to get the rule set aside, but the challenge also draws on constitutional arguments that reach much farther. The petitioners argue that the mandate lies outside the federal government’s constitutional power to regulate interstate commerce because it is not a regulation of economic activity. They argue also that the authority claimed by OSHA in this instance is so wide-ranging as to represent an unconstitutional delegation of legislative power. Ten or fifteen years ago, none of these arguments would be likely to make much headway in most American courts. But conservative Justices on the Supreme Court have signalled a willingness, or even an eagerness, to reconsider the scope of Congress’s power to regulate and delegate along the lines suggested by the petitioners.

What Happens Now

Under applicable law, the appeals court that ultimately will rule on the consolidated cases is to be randomly selected ten days from the issuance of the challenged standard, at which point the other courts transfer their cases to it. In other words, this case will have a permanent home by the first part of next week. There are indications, though, that the Fifth Circuit does not want to wait. The Court asked for — and received — briefing from the parties on the petitioners’ motion for a permanent injunction on a very tight turnaround. The government has urged the Court not to take action on the motion before the consolidated cases are assigned, but the Fifth Circuit is in a position to rule if it wishes to.

Whichever of the four appeals courts is assigned — the Sixth, Eighth, and Eleventh Circuits are in the running, along with the Fifth — the petitioners are likely to have their arguments heard by judges receptive to claims of regulatory overreach. Each of the courts where the challenges were brought boasts a solid majority of judicial conservatives among its ranks, raising the odds that the three-judge panel assigned to hear the case will lean to the right. But the Court of Appeals for the Fifth Circuit, which is responsible for cases arising in Louisiana, Mississippi, and Texas, has distinguished itself in recent years as a vanguard of judicial conservatism. The Court was recently in the news for reinstating Texas’s new abortion ban after it had been suspended by a lower federal court, but it has been a central player in many of the hot-button legal disputes of the last decade plus. Much as the liberal Court of Appeals for the Ninth Circuit has long been a favored venue for challenges to the policies of Republican Presidents, opponents of Democratic initiatives often make their way to the Fifth Circuit, which more often than not delivers the relief they seek.

We will know soon whether the Fifth Circuit decides to take further action or waits until the consolidated cases are assigned. More important is whether the eventual ruling, from whatever court it comes, rests on statutory or constitutional arguments. Judges across the federal judiciary would predictably divide over the statutory questions here: the vaccine-or-test mandate is a novel measure with far-reaching impacts, and federal judges vary in their receptiveness to innovations of this sort. Many judges would be persuaded by the government’s argument that the mandate, even if not a traditional occupational health and safety measure, satisfies all of the statutory criteria and curbs a serious danger in the workplace — but relatively few such judges are likely to be found on the relevant appeals courts. More generally, the statutory standards for an ETS are strict, and they tend to be carefully policed by courts, so that OSHA does not circumvent the notice-and-comment requirements without good reason. In fact, of the six times to date OSHA has gone to court to defend emergency standards, it has lost, in whole or in part, five times. OSHA has gone to great lengths this time to demonstrate that this ETS satisfies the statutory criteria, but its track record is not encouraging.

Still, a loss on statutory grounds would mean only that the vaccine-or-test mandate would not take effect. A loss on constitutional grounds — interstate commerce or non-delegation grounds — would mean that the the ETS would go down and take substantial parts of the administrative state with it.  Ultimately, of course, whatever happens with the appeals courts is a prelude to the main action, which will play out before the Supreme Court. Depending on how the Supreme Court rules, the impact of this case could continue to be felt long after this interminable pandemic ends.

SUGGESTED CITATION  Mathews, Jud: Biden’s Vaccine-or-Test Mandate in Legal Limbo, VerfBlog, 2021/11/10, https://verfassungsblog.de/bidens-vaccine-or-test-mandate-in-legal-limbo/, DOI: 10.17176/20211110-182628-0.

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