The Volokh Conspiracy

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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.