The Political and Legal Stars Are Aligned For Challenges to the OSHA Vaccine Mandate

It feels like 2010, all over again.


The New York Times writes about the infuriated Republican Governors who plan to challenge the new OSHA vaccine mandate. Here are some of the highlights:

News of the mandates prompted Gov. Henry McMaster of South Carolina to say he would fight Mr. Biden and his party "to the gates of hell."

"@JoeBiden see you in court," Gov. Kristi Noem of South Dakota wrote on Twitter.

Gov. Brian Kemp of Georgia suggested that he might sue to "stop this blatantly unlawful overreach by the Biden administration."

Gov. Kay Ivey of Alabama referred to the rules as "outrageous, overreaching mandates."

And in Florida, where a judge on Friday allowed a ban on school mask mandates to remain in place as a legal challenge works its way through the courts, Gov. Ron DeSantis said in a fund-raising email that Mr. Biden had "declared war" on the rule of law and millions of Americans' jobs by issuing the vaccine requirements.

Gov. Tate Reeves of Mississippi, who called the mandates "terrifying," made a point of noting that "the vaccine itself is life-saving." He added: "This is still America, and we still believe in freedom from tyrants."

Gov. Mike DeWine of Ohio, a Republican who wore face masks and set up a $1 million lottery prize for vaccinated Ohioans, said the nationwide mandate was a "mistake" that would harden the political divides over vaccination. In Utah, Gov. Spencer Cox said he had "serious concerns" about whether the order was legal.

The Times observed that this may be the most consequential conservative legal challenge since the Obamacare cases:

Several Republican governors vowed to go to court to challenge the constitutionality of the rules that affect two-thirds of American workers, setting the stage for one of the nation's most consequential legal battles over public health since Republicans sued to overturn the Affordable Care Act.

Truly, it feels like 2010 all over again. The political and legal stars are aligned. And there is no need to crate elaborate constitutional arguments about broccoli mandates. Plus, states have standing as employers. No need to rely on parens patriae.

Unlike in 2010, when all of the red states chose to file in a single forum–Florida (and not Texas), now all of the states will pick their own home forums. Based on the quotes, we are looking at separate suits in the Fourth, Fifth, Sixth, Eighth, and Eleventh Circuits. Maybe South Carolina can join Georgia's suit. At present, the "gates of hell" do not reach Richmond. [Update: Under 28 U.S.C. 2112(a)(1), challenges to the ETS are consolidated in a single court of appeals, pursuant to a judicial lottery. But challenges to the CMS policy can be filed in the respective home circuits.]

The Biden Administration may recognize that some court, somewhere, will vacate this rule. But it hope in the interim, this policy will encourage people to get vaccinated. This tactic resembles the strategy from the eviction moratorium case: give us 30 days, and we can distribute all of the money! Given this past track record, the courts of appeals should move with haste. And, the Supreme Court should consider scheduling oral arguments on an emergency basis. This case is far more consequential than the chaplain-execution case it slotted for arguments next month. The Supreme Court should resolve this case on the rocket docket, rather than the shadow docket. We can get finality sooner, rather than later.

NEXT: Fifth Circuit Rules Against Whole Woman's Health in Pending Appeal

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  1. For once, just once, it would be nice if the Rs would cooperate and not oppose a covid prevention measure. Vaccines work and if we all get vaccinated we can beat this.

    1. Found the Nazi.

      1. There has been so much acute excitement over owning the libs among anti-abortion kooks and virus-flouting rubes that Prof. Blackman hasn’t even mentioned the outrage concerning the mainstream’s desecration of the statue of traitor, bigot, loser, and conservative hero Robert E. Lee.

        Carry on, clingers. Your betters will let you know how far and how long, especially with respect to monuments commemorating your Confederate heroes such as the disgusting racist Lee..

      2. If you think a defining characterizing of Nazis is a disdain for those who kill people, then you need to go back to history class.

    2. we need to force the vaccination on people who already got covid but not on migrants on the southern border because science or something.

    3. Mooly,
      As a vaccination advocate, I reply that it would be nice if the President of the US realized that he is not a dictator.
      He is welcome to set rules for Federal employees and even for prime contractors that operate Federal facilities.
      As for the rest, hands off and get the CDC to stop undermining its and his credibility with respect to this pandemic

      1. I think the majority of people are pissed at the unvaccinated for prolonging the pandemic. As such, even though Biden may have overstepped what Congress has allowed, I think his actions are a political winner (as well as on the substance of halting the pandemic). The governors who are likely to sue could be bigger winners if they argued Biden does not have the authority but they will step in and require vaccinations. But instead they are losers because they want to protect the “right” to spread disease.

        1. ” I think his actions are a political winner”
          You could be correct about that. And that was a likely motivation for his mandate

          1. Well, that and a desire to prevent the antisocial, disaffected knuckle-draggers from killing themselves and others, consuming healthcare resources that others might need, and generally diminishing our society . . .

        2. “they are losers because they want to protect the “right” to spread disease.”
          That kind if divisiveness is, in fact, the loser in you speaking

          1. What’s inaccurate about my characterization?

            1. Simple, it is your divisive opinion to call them losers. In whose eyes?
              They consider their stance to be a politically winning position.
              The cited governors think that POTUS as overstepped his authority and trampled on theirs. People who stand up for the power of their office may be wrong, but they are far from losers.
              Divisiveness language on both sides is a losing proposition.

              1. I would buy their argument if they said Biden overstepped his authority but they were going to require vaccines. But they don’t for the reason I gave.

              2. We don’t care how the anti-vax, pro-covid people feel. They are intentionally spreading a deadly virus. They deserve scorn.

                1. They are intentionally spreading a deadly virus.

                  This sort of dishonest demonization is why people are rude and dismissive.

                  Being unvaccinated is not the same thing as being infected.
                  Can you understand that?

                  1. Toranth, you are right there. Morally, going unvaccinated is notably worse than being infected. Even among the unvaccinated, being infected approaches being happenstance. Not so for a deliberate decision to forego vaccination.

                    1. Just when Molly was winning the stupid hot-take award, Lathrop comes in for the kill!

                      No, O fearful one, being unvaccinated is not worse than being infected. I would agree that being infected and deliberately interacting with others is morally (and should be legally) wrong, but that’s not what you decided to attack. You would rather be more upset about vague possibilities than deliberate foreseeable direct outcomes.

        3. There are a few problems

          “I think the majority of people are pissed at the unvaccinated for prolonging the pandemic. ”

          1) Realistically, the “majority of the people” here are overseas. As long as you have huge masses of people overseas as a way for the virus to continue, it’s going to continue.

          2) Using unconstitutional measures to prevent a disease is not a winner. You’ve lost Ilya already here. When the government uses dictatorial powers illegally, even for a “good cause” it’s a loser. In the short term likely, and definately in the long term.

          1. In addition the governors enforcing vaccine mandates, another constitutional method would be for Congress to pass a law. But, the Republicans won’t go for that either because they oppose it on the merits, not (just) the process. And, that’s why Republicans are losing on this issue.

            1. As the disease progresses we will see who or what agency is a scientifically a loser.
              CDC loses credibility with each surprise and self-contradictory message, hoping that they will at least have a political defense. That is a sad position for a once highly esteemed agency.

              1. Your point about the CDC’s credibility is well taken. However, I’m pretty sure the impact of having 80 million (plus kids) not vaccinated on the lifespan of the pandemic is not controversial.

        4. Is there any poll out regarding support for this type of vaccination mandate? I assume like always the San Fran and Los Angeles crowd are into a bit of the old left wing government tyranny. But I kinda doubt red state governors are at that much risk in their turf.

          1. Perhaps you are right in deep red states, but numbers like these may not augur well for slightly red states like Florida or even Texas.

            1. It looks like an almost even split. Not a slam dunk majority.

              1. 50% in favor, 26% opposed and 23% neither in favor or opposed is not an even split.

    4. This may surprise you, but how you do things matters. Going through Constitutionally illegal means to accomplish your goals, no matter how noble, is problematic.

      Let’s say Biden did something more extreme as a COVID prevention measure. He ordered the US army to invade the home of every US Citizen and jab a vaccine into their arm. That would be a COVID prevention measure. Would you oppose such a measure?

      What if instead, Biden just ordered DHS inject a vaccine into every illegal immigrant or suspected illegal immigrant they found. Would you oppose such a COVID prevention measure?

      1. Except he didn’t do either of those things, and if what he did was unconstitutional then the courts will say so, and stop it.

        So as usual your “what if…..” analogy is useless.

        1. Point being Bernard, that this current order of Biden’s is almost certainly unconstitutional as well. You’ve even lost Ilya. And using unconstitutional measures to accomplish noble goals is a bad idea.

          1. Well, A.L. I’d say the Texas abortion law is almost certainly unconstitutional, yet I don’t see you claiming that “using unconstitutional measures to accomplish noble goals is a bad idea.”

            (Note: I don’t think Texas’ goals are noble, but I imagine you do.)

        2. AL’s analogies are typically useless

    5. This case has nothing to do with the wisdom of getting vaccinated. This case is about whether the Executive Branch can unilaterally make and enforce decisions of this type. It’s about the precedent that gets set and the freedoms ultimately lost if we tolerate such a violation of the separation of powers built into our constitutional system.

  2. Fuck you. You are a fucking horrid person and have no understanding of law.

    Sincerely, every lawyer that reads this blog

    1. Not down with the President ruling like a king by decree = horrible person

    2. There’s at least one here who disagrees with you. He also thinks you’re a mendacious cunt.

  3. So this is what a premature clingergasm sounds like.

    Will any of the people egging Prof. Blackman on be there to talk him off the bridge when he finally recognizes that he is a hapless, hopeless casualty of the culture war, and that his political and legal right-wing fever dreams will be crushed by the American mainstream?

  4. Plus, states have standing as employers.

    How, when the mandate doesn’t apply to them?

  5. Let’s see.

    This “article” (I use the term loosely) is based on NY Times reporting . Why? Because, as we have all learned, the NY Times is always the gold standard, except when Republicans need to rail against the media. It’s the same as going after the elite universities- great for fundraising, but where to do you think they are sending their own kids to? It’s certainly not South Texas College of Law!

    Anyway, JB has collected angry tweets from some GOP governors. Which means it’s just like 2010 again. For … reasons? Because there is no legal analysis here. Instead, it’s just a recycling of JB’s weirdest tics.

    A. Absence of law? Of course! I mean, actual practicing attorneys understand the real and colorable differences between executive action through agencies and a statute like the ACA, but … whatever, man!

    B. Needlessly misunderstanding important details? You betcha! Sure, there are actually things like “rules” and “gradations” and “nuance,” but who cares, amirite? For example, this applies to private employers with more than 100 employees, and certain workers in health care and head start that receive federal funding (along with federal employees not otherwise subject to union constraints). Do you have to get vaccinated? Is it a mandate? Well, no! You can get a weekly test.

    But what do facts and details matter, eh?

    C. Weird assumptions about the motivations of people? Of course! This wasn’t a good-faith attempt by the Biden Administration to get more people vaccinated due to the combination of slowing rates and Delta that they think is lawful; hoo-boy, this is a knowingly illegal attempt that they are trying to push through! And the courts should treat it as such and jut strike it down regardless of any procedural issues or facts.

    Not at all like JB’s baby, Texas SB8, which the Courts MUST KEEP ALIVE because any pre-enforcement challenge to abort JB’s baby would be bad. And stuff.

    D. Exhortations on what the Supreme Court must do. Yep, that too!

    The only thing this is missing is some inane attempt to make a cutesy term or BS partisan issue trend. What, no Blue June or Blue Monday or demands that CJ Roberts resign because he’s not as smart as Josh Blackman?

    1. I really miss the old days when you could put a token on the query string to hide contributors whose crap you were tired of seeing.

      The recently implemented mute function has greatly increased the level of intelligence in the comments, for me anyway. Be nice to have it at the front page level.

    2. But he got to use his new term-of-the-month, “Rocket Docket.” Surely, this one will catch-on among his fellow bloggers and Josh will finally achieve academic stardom.

      1. He’d better not hold his breath waiting for that or an offer from at least a tier 3 law school

    3. Not at all like JB’s baby, Texas SB8, which the Courts MUST KEEP ALIVE because any pre-enforcement challenge to abort JB’s baby would be bad. And stuff.

      Not because it would be bad. Because there is no effective procedural path for it available in law or equity.

  6. For those that support the mandate, what is your legal argument? Precedents? I always like to look at the “devil’s advocate” perspective….Would your argument allow a President Pence to institute mandatory random urinalysis since drugs in the workplace create a dangerous environment?

    1. That’s a nice analogy that should raise concerns among us liberals about whether this mandate is authorized by Congress. Nonetheless, the blame falls squarely on Republicans for not supporting a bipartisan law authorizing the mandate.

  7. The federal government’s workers, its contractors, and likely many of the corporations subject to Biden’s mandate are unionized. Presumably some, maybe many, of the union members will object to mandatory vaccination. I wonder whether the unions will stand behind those objecting members, or will they cave. And if the latter, what if anything will it tell us about unions.

    1. For any union that objects, Biden will cave.

    2. Union leadership will likely object to any changes in workplace rules without it being bargained for. Why give away something for free when you might be able to cut a deal and get something out of it?

      Trade unions are like the police, the military, zoning laws, etc. – deeply flawed in many cases (in this case not really looking out for the welfare of their members) but a net positive on the whole.

      And I don’t think whatever they do will tell us anything new.

    3. Hey, sometimes unions have gone out of their way to demand safety measures for their members.

      I think it was a New York public employee union where the president said basically they were pro-vax, but they had a contract and would have to agree to changes in employment conditions before the government could impose them.

  8. There was a very recent article at, opinionated but analytical, about the legal playing field for challenges. No mention of any legal credentials for the author. Sorry, too lazy to find it again and post the link.

    An ETS requires that the danger be “grave” and the measures “necessary”. In ordinary usage, SARS COV 2 qualifies as a “substance or agent”, so unless there are oddly narrow definitions in case law the challenges could be against the claimed gravity, or the necessity, or based on case law in which an ETS lost in court because OSHA had not weighed alternative measures.

    One court has set a precedent that whether a threat is “grave” is entirely under the discretion of the agency and not for courts to rule on.

    A court that considers itself bound by precedent could hear arguments about whether the testing/vaccination requirement is necessary. “Necessary” is one of those words that invites debate.

    And if I can think of this, a lawyer can. Ask OSHA “Did you consider simply requiring masks?”. That connects to the precedent of an ETS from the Reagan era about asbestos where OSHA had not explained why requiring respirators wouldn’t solve the problem.

    I’m intellectually curious how this all looks through the eyes of an actual lawyer.

    1. Counting COVID as a “substance or agent” trivializes the terms, as absolutely everything is a “substance or agent”.

  9. I see “The Reverend” has once again found his stride.


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