An NFIB Counterfactual: What if the Obamacare Individual Mandate Were Enforced By Employers?

We cannot simply presume that Congress can indirectly regulate private conduct through the direct regulation of workplace safety.

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On Friday, I offered five tentative thoughts about the OSHA vaccine mandate. My final point considered whether this statute, as enforced through the OSHA executive action, would be a "proper" exercise of federal power. Consider a counterfactual to illustrate this constitutional question.

Flash back to 2009. Imagine that Congress chooses a different path for the ACA. Instead of enacting the familiar individual and employer mandates, Congress imposes a very different kind of mandate: all employers with more than 100 employees must require that their employees purchase health insurance that meets certain minimum standards. The federal government offers generous income-adjusted subsidies. There are also hardship exemptions for people whose income falls below a certain level. But if a person does not fall within an exemption, and still chooses not to buy health insurance, then the employer is subject to a $15,000 fine per quarter. The federal government imposes no penalty on the employee. Under the law, employers are required to maintain records of uninsured employees. Federal inspectors will perform routine inspections of those records and the premises, and can issue quarterly fines for each unemployed employees. During congressional hearings,  leading executives and HR professionals predict that businesses would simply terminate employees rather than pay the repeated fines. Millions of Americans would lose their jobs due to the mandate.

I view this hypothetical as a workaround of NFIB's proper analysis. So long as the mandate is enforced by employers, the federal government is not regulating individuals. And Congress has well-established powers to impose fines on businesses that engage in economic activity that substantially affect interstate commerce. Still, this statute would empower Congress to indirectly regulate 100+ million Americans. If Congress drops the threshold to 10 employees, an even greater number of people would fall within the ambit of federal power. And this regulation does not concern mundane workplace activity. Rather, Congress would have imposed a requirement to purchase a commercial product–the precise unprecedented power that Congress lacks.

Would this workaround pass muster under the NFIB proper analysis? Could Congress enact any law it wishes, so long as that mandate is enforced by private parties? Like with all questions about the scope of federal power, the answer turns on identifying a limiting principle. (Feels like 2010, doesn't it?). Consider a few examples.

First, during the pandemic, Congress required employers to mandate that their non-essential employees must be subject to strict lockdown requirements: with narrow exceptions: non-essential employees must stay home to limit the interstate spread of COVID-19. Any employer that fails to keep their workers home is subject to fines. Could Congress directly require people stay home? I am doubtful. But delegating this requirement to employers would make the case much stronger.

Second, take a classic example. Congress requires employers to impose a broccoli mandate. Yes, the federal government will penalize businesses that do not require workers to buy one crown of broccoli per year.  Of course, the law could have income-based subsidies and various hardship exemptions. However, shifting enforcement to private parties radically expands the scope of federal power. So long as an activity can fit within the broad regulation of the commerce power, individuals can be subject to private coercion. The parallels to S.B. 8 should be obvious.

Third, consider an even more S.B. 8-ish example. Congress requires employers to prohibit their workers from keeping a handgun at home. Congress finds that there is a chance those guns may be brought to work, and detrimentally impact interstate commerce. The federal government imposes no direct regulation on employees. The law acts only on businesses. Table the Second Amendment, and issues of third party standing. Would this law be within Congress's federal powers?

All three hypotheticals involve the federal government imposing indirect mandates on individual conduct, as enforced by employers. And all of this conduct occurs off the clock, in the privacy of one's home. Plus, all examples implicate constitutional rights–lockdown in home, buying broccoli, private ownership of handguns. A vaccine mandate likewise implicates rights of bodily autonomy. These areas were traditionally regulated by state, rather than the federal government.

We cannot simply presume that Congress can indirectly regulate private conduct through the direct regulation of workplace safety. The proper analysis from NFIB cannot be so easily defeated through this workaround. Putting aside the nuances of the OSHAct and ETS, there will still be some good, old-fashioned constitutional litigation ahead of us.

NEXT: Today in Supreme Court History: September 12, 1958

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  1. You realize that the government won NFIB, right?

  2. Congress can certainly require employers to buy health insurance and broccoli for their employees. They are already required to buy many other things for their employees, like safety equipment.

    And since broccoli and employees are indirect compensation, their cost will will affect pay. Thus employers are effectively buying insurance and broccoli on behalf of their employees.

    So, is there any relevant difference between “Employers must buy insurance and broccoli on behalf of their employees, adjusting pay if necessary” and “Employers must make sure employees spend part of their pay on insurance and broccoli”?

    1. ^^ And since broccoli and *insurance* are indirect compensation, their cost will will affect pay

    2. Under the current misbegotten reading of the constitution – yes.

      Regardless, the article quite correctly points out that proper constitutional analysis should never allow the government to do through proxies what it would not be permitted to do directly.

      Rather than the provided examples – what If OSHA fined employers with 100 employees if their employees posted misinformation on the election ?

      One of the problems with large amounts of constitutional jurisprudence – particularly that involving commerce and rights, is Precisely what Chief of Staff Klain tweeted – that it invites government to find ways to “work arround” constitutional limitations.

  3. “Could Congress enact any law it wishes, so long as that mandate is enforced by private parties? ”

    The classic definition of fascism.

    1. That is not in fact the classic definition of fascism.

      The word Fascism has now no meaning except in so far as it signifies ‘something not desirable’.

      1. Actually it is pretty close to fascism.
        Fascism is the political ideology that elevates the state above the individual. Fascism is infamous for using businesses to accomplish state purposes.

        1. Also not the definition of fascism.

        2. Fascism.
          You keep using that word.
          I do not think it means what you think it means.

  4. Would this workaround pass muster under the NFIB proper analysis?

    What is that analysis? We had one analysis from Roberts and one from the join dissent. I can’t figure out the essence of either analysis, let alone deciding which one (if any) has precedential value.

    1. Josh R….does the workaround pass your muster? Why or why not? I am genuinely curious about what you think.

      1. If I am allowed to ignore precedent, then there wouldn’t be a workaround. The mandate, as a penalty, would have been upheld as being necessary and proper for carrying into execution guaranteed issue and community ratings (both of which are regulations of interstate commerce).

        1. He just wants you to ignore the taxing power part of the precedent

  5. The federal government imposes no penalty on the employee. Under the law, employers are required to maintain records of uninsured employees, and must also track booster shots. Federal inspectors will perform routine inspections of those records and the premises, and can issue quarterly fines for each unvaccinated employees.

    Does Josh read this stuff before he hits “Post?”

    1. This is the future of right-wing legal academia. And the best it can muster currently.

      I am content.

    2. My favorite is this: “Federal inspectors will perform routine inspections of those records and the premises, and can issue quarterly fines for each unemployed employees.”

  6. The gun regulation is not “proper” because of the Second Amendment. From McCulloch v Maryland

    Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

  7. Curiously enough, Japan does (almost) this – fines employers for having unhealthy employees, because they cannot mandate health.

  8. Let’s assume for the sake of argument that Josh is correct and NFIB does not permit Congress to sanction employers for not insuring their employees carry health insurance or purchasing broccoli. The vaccine mandate is nonetheless permitted as a regulation of workplace safety.

    1. Just about anything can be claimed to be for workplace safety.
      This is one of the core problems of the modern misapplication of the constitution.

      It is trivially arguable that any restriction of any right can be constitutionally blessed somehow – all that is required is enough doublespeak.

      Could an extreme republican congress compel OSHA to prohibit Abortions through workplace safety regulations ?

      Aside from the fact that you hold a different view of the value of abortion – How would that be different ?

      1. Could an extreme republican congress compel OSHA to prohibit Abortions through workplace safety regulations?

        Of course not because the Fourteenth Amendment prohibits all levels of government from doing so. In contrast, direct vaccine mandates by state or local governments do not violate the constitution.

        1. I think a simpler response is: Because the employer (in your hypo) is the pregnant woman, right? And having an abortion is much much much safer than going through with a pregnancy and carrying a child to term. (I think it’s 14x safer, but am not bothering to look it up for the specific numbers.)

          Jbsay’s argument supports a policy where the employer mandates that an employee GETS an abortion, on the grounds that it’s safer than not having the abortion. That’s a more-interesting hypo, although it would never ever pass into law in this country, for constitutional and we’re-not-fucking-evil reasons. (Your mileage in China and elsewhere may vary.)

          1. My hypothetical was constructed to offend values held deeply by the left – as right now they are the ones seeking to infringe on liberty.

            If forced abortions floats your boat, that works too.

            Regardless, I did not propose grounds – why are grounds necescary – the entire point of this is that Employers as private actors are FORCING government mandated health decisions on employees.
            Government sucks at getting factors like the actual safety of anything right, and that is ignoring the fact that health choices are NEVER onesize fits all and government has no ability of interest in addressing the actual unique circumstances of each individual.

            I do not care whether an abortion is purportedly safer or less, In fact I reject the premise that government is a capable judge of that.
            Individuals on net make better choices than government even considering that some individuals make horrific choices.

          2. We are not evil ? Since when ? We enslaved 12M people. Sounds pretty evil to me. I would further note that using the same the state can screw with peoples health choices legal nonsense, we have forcibly sterilized people and subjected them to all kinds of other draconian nonsense before.

            While I do not actually think this country is inherently evil – in fact I think that as the world goods this country is one of the more significant forces for good, that does not mean I think we are somehow immune either in the past,t he present of the future from doing great evil through government.

        2. The 14th amendment explicitly prohibits the states from interfering in the privileges and immunities of citizens – language chosen deliberately to go BEYOND rights.
          As I recall the 14th ammendment – not the 2nd is the real foundation for the courts more purist position on gun rights – among other reasons because one of its purposes was to assure that free blacks had the right to own guns for their own self defense. Regardless vaccine mandates violate the actual 14th amendment, rather than the fake one that only applies to privileges and immunities that those on the left recognize.
          Absolutely the federal govenrment has no general police power – and therefore no power regarding public health, but just because states do have a general police power does not mean that they can violate rights willy nilly as they please. The current court derived standard for the protection of rights over government wishes is var too weak, but it is not non-existant. Just because public health might be a legitimate domain of the states – under the weakened 14th ammendment, does not mean they can do anything they please.

  9. If any of these hypotheticals were in force, I would expect millions of employees to try to turn themselves into independent contractors,, and a large fraction of them to succeed. With lots of litigation as both sides try to twiddle the boundary of who can be one.

    1. I would expect millions of employees to try to turn themselves into independent contractors,, and a large fraction of them to succeed. With lots of litigation as both sides try to twiddle the boundary of who can be one.

      Not sure there would be much of a quarrel here. Historically, employers have fought to keep workers classified as ICs, and workers have fought to be classified as employees. Rational employers would therefore view this as a win-win — less potential exposure from this new malarkey, plus all the prior benefits of using ICs.

    2. It is easier to just fire and replace the misfits.

      1. You presume that each of us is just a replaceable cog in the machine.

        What if the employee that refuses to comply is one of your most productive employees ? Ir what if they are the only one proficient in some task ?

        This is a common error in statist thought – that those who refuse to comply are trivially replaceable.

        What if 10% of the workforce refuses to comply – are you going to fire them and raise unemployment 10% ?

        Conversely lets presume the recalcitrant employees are expendable. So you fire some significnat portion of your workforce, you face myriads of wrongfull termination lawsuits – because many fired employees tend to be litigious – nor are those lawsuits inherently going to be rooted in the vaccine – they may claim racial discrimination or age discrimination or …

        Further – even assuming that there are other equivalent cogs ready to fill in as gears in the machine – you have imposed all the costs of hiring and firing, and training new people.

        That may be inconsequential for the guy who puts the 3rd nut on the wheel on an assembly line – but how easy do you think it is to replace a lead project architect managing 10 projects ?

        1. jb,
          I think you are making a counter-argument to an argument that no one is actually making. No one is saying, “This is a policy with zero costs and zero unanticipated consequences.” I think that, instead, they are saying, “Of course there will be some costs. Trivial for many/most, harmful for some, and very very harmful for some others. But the enormous benefits for the country writ large (ie, 300+ million) easily outweighs those costs.”

          Now, you might personally disagree with that argument. But I think it’s best if we engage with the arguments the other side(s) are actually making, rather than arguments that appear to be strawmen.

          1. The left has actually claimed this entire country was built on slavery, that capitalism is inherently evil and discriminatory. Yet, these are both things that could and did at one time survive a cost benefit analysis. You say the costs would be trivial – not for those who die or are otherwise harmed, and lets not pretend no one is harmed by the vaccine. As to the purported enormous benefits – those too are an assumption. One government has gotten horribly wrong in the past.

            I can agree that based on what we know the odds favor vaccination on net – though not by the enormous margin you claim, and for MOST the cost is likely small – but not trivial and not for all.
            And that discounts the fact that there is still alot we do not know.

            We are seeking to completely eradicate via vaccine a disease that did not exist 2 years ago – we have never done that before. I am glad we have the vaccine and I CHOSE to get vaccinated, but force vaccination of the entire country is a huge step. Even the miniscule possibility that we are wrong about what we do not yet know for sure could have enormous catastrophic consequences.

          2. If I disagree with your argument – I am not making a strawman.

            Nor do I care what arguments others are making.
            Some of what I am arguing is pretty standard reductio ad absurdem.
            The means of defeating that is to identify – IN EXISTING LAW a clear limiting principle. Not to say – “oh that can never happen”. Without an existing limiting principle – not only can it happen – but with certainty we will be back to this argument soon enough when govenrment seeks to move the goal posts a little more.

      2. Right. That explains why there aren’t any help wanted signs anywhere.

        1. Or buy them insurance, broccoli, or whatever

  10. Could Congress require employers to ban there employees from smoking – on or off the job? Could they require weekly testing to make sure that the employees were in compliance with the requirement? And then fine the employer if they are not?

  11. But.. covid.. communicable.. different…

    1. And there is law somewhere that says OSHA’s authority is limited to things that are communicable ?

      We are dealing with actual rights, an actual constitution, and real laws – none of which have any provisions regarding communicable diseases. If you are prepared to extend OSHA’s power to this – you can extend it to anything that has anything to do with public health which is pretty much anything.

      And lets get past the nonsense – oh, that would never happen.
      Do you need quotes from just about everyone in the democratic party from Biden on down in the past year that vaccine mandates would never happen, and are unconstitutional ?

      Always assume that any unconstrained expansion of federal power will – probably shortly be abused. As noted before while the left is completely wrong in its presumption this country is irredeemably evil, that does not change the fact that we have in the past, and the present and will int he future do so incredibly evil things in the name of the public good. Unless you have been lobotomized, you know that – and we did that too.

      1. And there is law somewhere that says OSHA’s authority is limited to things that are communicable ?

        I mean, pretty much. OSHA’s authority is over workplace safety. Unless one can get sick or hurt on the job, OSHA doesn’t apply. If a co-worker has a non-communicable disease, that poses no risk to other employees. (That’s what non-communicable means.)

        (Of course, non-communicable illnesses that one incurs from the job itself (e.g., from exposure to toxic substances) would also be covered, but that’s a different topic.)

  12. I would further note that mostly ignored here is the fact that the vaccine is currently approved on an emergency use basis.

    While there is some bizzare political/legal games going on with respect to standard approval – we are not seeing large amounts of vaccination under the standard approval – because under that basis the drug companies are liable.

    What we have is the government forcing employers to require employees to take a vaccine that should it cause them harm they will have absolutely no redress, or alternately forcing the vaccine manufacturers to start providing the “approved” vaccine – for which they will be liable for.

    And all this is being done in the name of “workplace safety” ?

    Has no one read Orwell ?

    1. I would further note that mostly ignored here is the fact that the vaccine is currently approved on an emergency use basis.

      False.

      What we have is the government forcing employers to require employees to take a vaccine that should it cause them harm they will have absolutely no redress,

      False. See the Countermeasures Injury Compensation Program.

      or alternately forcing the vaccine manufacturers to start providing the “approved” vaccine – for which they will be liable for.

      Also false. Coverage under the CICP does not turn on whether the vaccine is fully approved or only approved under an EUA.

  13. Also unaddressed is the FACT that we have a leaky vaccine with short efficacy.

    The fact that the vaccine is leaky means that there is a high probability that we will see variants that the vaccine does not work against.

    The fact that the efficacy is short means that the odds of defeating Covid by vaccination are actually low.

    It is still likely that we will acheive herd immunity shortly, it appears that Sweden has done so. But the vaccine is a small tool in reaching that, Natural immunity both by infection, and from those who for whatever reason have high odds against infection, plus vaccine immunity probably will get us to herd immunity shortly.
    If we do not get a varriant that defeats the vaccine soon.

    And even if we reach herd immunity – we have to sustain it.
    If we were acheiving herd immunity through vaccination we will not reach it at the current global vaccination rates before the vaccine wears off several times over.

    If we reach herd immunity and snuff this virus out – the immunity of people who have recovered as well as that of people who are naturally resistant matters much more than vaccines.

    We are in a race – and many experts already thing we have lost.
    Regardless, we can not win that race through vaccination.
    And we may well have screwed ourselves – essentially given the virus a large head start by “flattening the curve”

    I hope my dark scenarios are not true – but they are not hyprothetical, they are very real possibilities.

  14. Am I completely off base seeing a parallel between “we can’t mandate people get the vaccine so we’ll make employers do it” and the Texas “we can’t ban abortion so we’ll let other organizations do it”?

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