The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the Biden Administration announced that would require employers with more than 100 employees to mandate vaccination or testing. Specifically, the Department of Labor and the Occupational Safety and Health Administration will issue the rule. We do not yet have a proposed rule. Here, I will offer five tentative thoughts.
First, there will be litigation. Lots of litigation. This will be the rule that launched a thousand suits. Employers and employees across the country who object to the mandate will have standing to sue. They will bring suits in many district courts. Some judge, somewhere, will find this policy unlawful in some regard. And one of these judges may issue a nationwide injunction, or "vacate" the rule. And some court of appeals, somewhere, may agree. [Update: Under 29 U.S.C. 655(f), a pre-enforcement challenge may begin in the court of appeals]. The Biden Administration no doubt recognizes that the courts can block this policy. But this risk was worth taking. Most employers will not challenge the policy. And many companies will be happy this policy provides cover for mandating vaccines. In the interim, millions of people will get vaccinated. But this mandate could create unanticipated ripples in the workplace. Many people will simply choose to be fired, rather than get the jab. Others will submit fraudulent documents, which will lead to discipline. Unemployment numbers may actually trickle up because of this executive action. People do not respond well to mandates. Indeed, I fear this federal diktat will harden the hearts, so to speak, and exacerbate vaccine hesitancy.
Second, the rule will likely be issued very soon, before any public comment period. OSHA will likely issue an Emergency Temporary Standard (ETS). OSHA used this approach to impose a vaccine mandate on healthcare workers in June 2021. The ETS became effective a few days after it appeared in the federal register. According to CRS, the last time OSHA tried to use an ETS was for a 1981 asbestos rule. And that rule was stayed. Section 6(c)(1) of the OSHA Act allows the Secretary to issue an ETS if he determines "that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." Is COVID-19 a "hazard," as this term has been traditionally understood, in the same sense as a dangerous chemical? Are there other provisions of OSHA that govern exposure to diseases? If so, Section 6(c)(1) may be read to be limited to chemical hazards, rather than airborne illnesses. I need to give this issue some more thought.
Third, does OSHA have the delegated authority to impose this requirement? I have not yet had time to study the statutory framework in any depth. For now, I will raise a broad question based on the major question doctrine and the non-delegation doctrine. As far as I understand, OSHA has traditionally regulated conduct in the workplace. For example, employees have to wear masks and the like. But this regulation governs conduct outside the workplace. More precisely, it requires employees to inject a substance in their body. Say what you will about Jacobson (my article is still going through the law review submission process), but there is some "bodily autonomy" interest at play here, that is not at play with a mask mandate. Did Congress really hide that elephantine-syringe in the OSHA "general duty" clause? Perhaps the better reading of the statute is that Congress did not delegate this authority.
Fourth, the Supreme Court's recent eviction moratorium case makes the Biden Administration's job much tougher. Courts are often skeptical when agencies attempt to use a very old statute to enact a sweeping broad new regulation. The Supreme Court reflected this concern in the eviction case. The majority favorably cited UARG and Brown & Williamson:
Even if the text were ambiguous, the sheer scope of the CDC's claimed authority under §361(a) would counsel against the Government's interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)). That is exactly the kind of power that the CDC claims here. At least 80% of the country, including between 6 and 17 million tenants at risk of eviction, falls within the moratorium.
I can see this precise authority being used to prune the OSHA vaccine mandate. Using OSHA to mandate vaccines for 100 million-plus employees is a stunning assertion of power. The decision to push the eviction case back up to the Supreme Court makes it harder to defend the OSHA vaccine mandate. Perhaps OSHA can mandate testing, which does not implicate bodily autonomy, but cannot mandate vaccines.
Fifth, there will invariably be constitutional challenges. I do not think Congress could directly require people to get vaccinated. But the OSHA rule accomplishes that same task, indirectly, through regulations of private employers. Is this regulation within Congress's commerce powers? To answer that question, we have to define the relevant activity. Does this rule regulate conduct in the workplace? If so, that activity would be economic in nature. Or does this rule regulate a person's decision not to get vaccinated? The latter decision sounds an awful lot like a decision not to purchase health insurance. Remember, in NFIB v. Sebelius the "broccoli" horrible involved buying broccoli, not forcing people to eat broccoli. We were told the latter mandate would implicate the Due Process Clause. I would wager that forcing someone to eat a vegetable is less intrusive than forcing someone to receive a vaccine. I hope the ACLU agrees.
Even if this authority is within Congress's commerce powers, it may go beyond Congress's Necessary and Proper powers. In other words, it is not a proper use of federal power to require 100 million Americans to become vaccinated. The federal government is not simply banning guns in school zones, or prohibiting domestic violence, or growing marijuana. This rule require forcible injection of substances in the bodies–a power never before exercised by Congress. "Bodily autonomy" interest are at stake. Moreover, there is a strong federalism angle. Such health and safety laws are traditionally within the state police power. And the federal policy preempts all state laws which prohibit vaccine mandates.
OSHA will also likely raise arguments based on "collective action" federalism– a common argument from NFIB. To prevent the spread of COVID between the several states, Congress can regulate this local activity. Still that activity must be economic in nature. Believe it or not, this precise issue came up during NFIB v. Sebelius oral arguments. I blogged about it in a now-prescient 2015 post. (I could have never fathomed that my work on Obamacare would become relevant in so many contexts.) Justice Breyer asked Attorney Michael Carvin whether the federal government could mandate inoculation against an epidemic. Mike Carvin answered no, based on Morrison (a case Breyer dissented in).
JUSTICE BREYER: I'm just picking on something. I'd like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn't say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –
JUSTICE BREYER: Is your answer to that yes or no?
MR. CARVIN: Oh, I'm sorry; my answer is no, they couldn't do it, because Morrison –
JUSTICE BREYER: No, they could not do it.
MR. CARVIN: Yes.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there's — okay, fine. Go ahead.
In short, Carvin explains that if the federal government lacked the power to police domestic violence in Morrison, they lack a similar power to police against inoculation.
MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the –and it has huge effects on the health care of our country. … I don't know why having a disease is any more local than — that beating up a woman.
I suspect a majority of the Court agreed with Carvin in 2012. That number is probably higher today. In a way, the testing option creates another parallel to NFIB: there is a mandate to get vaccinated, and a weekly penalty (the cost of testing) for those who disregard the mandate. Or, people have a choice between getting vaccinated, and paying for testing at their own cost.
Here, I think the major question doctrine plays an important role. To avoid reading OSHA as authorizing such a limitless power, the court would prefer a more narrow reading of the statute that did not delegate this power. The eviction moratorium case supports this narrowing construction. And there is a fall-back: testing. Severing the rule to permit testing, but not the mandate, could provide a viable outcome for the courts.
To reiterate my first point, even if these challenges are ultimately successful, the policy will have its intended effect in the interim: millions of people will get vaccinated rather than risk losing their jobs. Indeed, perhaps the best time to resolve this constitutional question would be after the pandemic concludes, and tempers cool.
These thoughts are only tentative, and I will revisit them after the rule is published. I welcome any comments.