The Volokh Conspiracy

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Vaccine mandates

My NBC Column on the Vaccine Mandate Cases Argued before the Supreme Court Today

In my view, the Court should uphold the CMS health care worker vaccination requirement, but rule against the overreaching OSHA rule imposed on employers with 100 or more workers.



NBC just published my column on the vaccine mandate cases argued before the Supreme Court today. Here's an excerpt:

The Biden administration has adopted several policies mandating vaccination against the Covid-19 virus. The administration's desire to increase the vaccination rate is laudable. Vaccines are essential to limit the spread of the disease and especially to prevent severe disease, hospitalization and death — including against the new omicron variant. But the government must respect legal limits on its power.

On Friday, the Supreme Court heard oral arguments in cases challenging two of these policies for not respecting those limits. One case, brought by the National Federation of Independent Business and 27 state governments, questioned the Occupational Safety and Health Administration policy requiring employers with 100 or more workers to compel nearly all of them to get vaccinated against Covid or wear masks on the job and take regular Covid tests. The health care case challenges the policy requiring health care workers employed by institutions receiving federal Medicare and Medicaid funds to get vaccinated.

The court should uphold the policy imposing vaccination requirements on health care workers. But the regulation governing large employers is legally dubious and would set a dangerous precedent if upheld.

The broad large-employer mandate effectively gives presidential administrations a blank check to control nearly every aspect of every workplace in the country, going beyond the authority given to the executive branch by Congress. It also goes against long-standing legal doctrines that constrain presidential authority and limit power grabs.

By contrast, the health care worker requirement is much narrower, well within the scope of existing law and does not threaten to set a problematic precedent. It also focuses on protecting a group — hospital patients and nursing home residents — who are especially vulnerable and often cannot effectively protect themselves against the virus.

Later in the column, I explain how upholding the OSHA mandate would undermine the "major questions" and nondelegation doctrines, which are important constraints on unilateral executive power.

I suspect this column will—in different ways—annoy people on both right and left. The parts that some on the right may sympathize with are likely to annoy the left, and vice versa.

Be that as it may, I have at least tried to be consistent in emphasizing the importance of nondelegation and major questions. I raised the same issues in my critiques of the Biden and Trump administration's Title 42 "public health" expulsions, their eviction moratorium (begin by Trump and extended by Biden), and other Trump administration immigration and trade restrictions.

UPDATE: I should admit that I overstated part of my argument in the column when I said that viruses are "living things." I had always assumed viruses are a form of life. But it turns out there is actually a longstanding debate among experts about whether they are or not. This issue is only a small point in my argument. For reasons mentioned elsewhere in the article, The OSHA mandate is an overreach even aside from this question. Nonetheless, I should have been more careful about this issue, and I apologize for overlooking it.