The Volokh Conspiracy

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Vaccine mandates

Balancing the Equities in the Vaccine Mandate Case


I don't have much to say about the merits of the challenge to the OSHA vaccine regulations, except that I prefer my statutory interpretation to be more textualist and my constitutional principles to be more forthrightly asserted. But like Richard Re, I was struck by the scant, and self-denying, reasoning when the Supreme Court got to the equitable considerations in whether to grant or deny a stay.

In the past the Court has said that when considering a request for a stay, after considering the likelihood of success on the merits: "A stay is not a matter of right," but "is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case." Also: "the traditional stay inquiry calls for assessing the harm to the opposing party and weighing the public interest." (The quotes are all from Chief Justice Roberts's opinion for the Court in Nken v. Holder (2009).)

And yet here is how the Court addressed this inquiry in NFIB v. Department of Labor:

The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA's mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32–33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408.

It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.

On its face, this is a very strange claim, as Richard notes. It is true that when considering the merits—what the statute says, and whether the OSHA reg. is consistent with it—the Court might plausibly deny a role in weighing those tradeoffs. But when considering whether to grant discretionary relief, such as a stay, the Court itself has said that it is supposed to consider the public interest.

So how can we understand what was going on here? Though the Court doesn't really articulate them, I can think of several possibilities, many of which are noted in Richard's post but I thought might be worth spelling out:

1. Equity is dead (for stays). Maybe the Court no longer thinks that it has discretion to deny a stay if the movant is correct on the merits. This would be a shocking change in the law, so I think it's unlikely that this is what's going on, but it's important to list it.

2. Equity is not dead, but the merits predominate. Once a Court has a firm view about the merits question—not just that the plaintiff is plausibly or probably right, but that the plaintiff is right because the Court knows what the statute says—one can see how that might overtake the equitable factors. It does sound weird to say "this regulation is illegal, but it's normatively good, so we're going to leave it in place for a while." That said, while it sounds weird, this is exactly the kind of inquiry that the equitable factors seem to call for. And I worry that a conclusion that the merits predominate will unravel over time into the death of equity, at least in this context.

3. Congress overruled equity for stays of regulations. The authority to issue a stay here comes not just from background principles of law or the All Writs Act but from a specific provision of the APA that says:

On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.

You could argue (and I think the plaintiffs maybe did argue) that this provision permits consideration of 1, the merits, and 2, irreparable injury, but not other equitable factors. I'm not sure that's right (what about "necessary and appropriate"?) but another possibility.

4. Equity for thee but not for me. Another possibility—and this would not be the first case to make you wonder about it—is that the Court thinks that it is not governed by the same legal principles that govern lower courts. This is another one for the shocking-but-I-need-to-write-it-down category.

5. Equity permits a Court to refuse to do equity. Another possibility is that equity is so discretionary that a Court has the discretion to refuse to exercise discretion. This seems self-contradictory, but under a strong "permissions" model of interpretation, maybe it can't be ruled out.

6. The Court did balance the equities, it just didn't say so. Another possibility is that in truth, the Court concluded that the public interest did favor an immediate stay. Maybe it doubts that the vaccines will really matter much many weeks from now, when they would become fully effective. Maybe it doubts there will be much compliance. Maybe it doubts there is anything useful the agency could do if given more time. Maybe it is really worried about job loss. Maybe it just has powerful libertarian passions on this issue. But the Court denies picking this option.


Some of these options are more defensible than others, and there are probably still better ones I haven't thought of. But it is regrettable that none of these explanations, or any other, is in the opinion. And it is this kind of stuff that makes the Court's discretion-denying rhetoric hard even for me to swallow.

It is no secret that a lot of important things have been happening on the Court's non-certiorari docket these days. If this keeps up, I think we need both a better account of the legal principles that govern that docket, and a Court that consistently cares about and articulates those principles.