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.

Comments

[Cheerio]

"The equities do not justify withholding interim relief."

"It is not our role to weigh such tradeoffs."

These might not actually be in tension with each other. I suspect that the court was just not being as explicit in connecting the dots, but it seems like the reasoning goes something like this: Only Congress can make a decision like this => This case is very clear cut => Likelihood on the merits is very high => It makes sense to issue the stay.

[Cheerio]

This is essentially like your "#2" option, but the fact is that likelihood of succeeding on the merits is a major factor in stays.

[SimonP]

This is part of why I dislike the Court's conservative judicial activism. It introduces all of this doctrinal incoherence, on its way to the outcomes it wants. Undoubtedly we'll have to sort out why these stays got granted and others haven't been (and won't be).

The trend that's happening here is, in truth, extra-legal, and it is: the Court bends the rules on cases where the stay (or other preliminary relief) is the whole ballgame.

There was a big uptick of this during the Trump administration, which seemed to view quick, decisive action serving the interests of its base as more important than the longevity of the actual action. That was consistent with Trump's whole philosophy on lawfare - throw everything, see what sticks, appeal everything to the skies. So it seems the Court got into the habit of delivering merits-like outcomes on writs and motions for preliminary relief.

And now it's coming to dominate more of our everyday politics. If there wasn't a stay on the OSHA mandate, then for all intents and purposes the case would have been lost by its plaintiffs, because we'll be well beyond the Omicron surge by the time the case will be settled. Meanwhile, blocking a preliminary injunction on SB 8 was the point all along, since abortion clinics typically don't reopen after they're shut down and chased out of the state. Ditto, any injunctions that might be handed down on Congress investigating Trump or the J6 insurrection, if they extend into the next Congress. You can kill those investigations just by blocking testimony and document production until "final resolution."

I wish we had a Court that was more reluctant to be manipulated in this way, but by all appearances the 3 far right justices want to play ball, and the 3 less-far right justices are content to go to bat from time to time. "Equity" be damned.

[Dilan Esper]

Good comment.

[Lee Moore]

The trend that's happening here is, in truth, extra-legal, and it is: the Court bends the rules on cases where the stay (or other preliminary relief) is the whole ballgame.....If there wasn't a stay on the OSHA mandate, then for all intents and purposes the case would have been lost by its plaintiffs

Except that's precisely what's not happening in the OHSA case. As Prof Bause explains, the plaintiffs arguably have a better case for a stay than they do for a win on the merits, precisely because at stay time, the court - according to its precedents - is permitted to second guess the government's professed real world pros and cons, in the exercise of the court's discretion.

Since in the real real world it's perfectly obvious that the employer mandate is completely bananas as to actual health and safety - since even the CDC admits that vaccination makes zero difference to your ability to pass on your covid cooties - the court is allowed to take that into account at stay time.

So what's going on here is that the court majority followed its stay rules - but then pretended that the stay rules did not involve looking at the real world. The reason is perfectly obvious - they're politicians and they don't want to be accused of second guessing "the science" - as the official government apparat's propaganda is now styled.

[jb]

"since even the CDC admits that vaccination makes zero difference to your ability to pass on your covid cooties"

God, this is so dumb and wrong. I don't even disagree with the decision, but I don't understand why every "conservative" take on Covid has to be based on blatantly incorrect information.

[SimonP]

Everything about this comment is wrong.

[bevis the lumberjack]

Simon, I said it in the last thread. The Senate explicitly voted against this mandate. In December 2021. THERE IS NO POSSIBILITY THAT CONGRESS WOULD GIVE OSHA THIS POWER.

So what basis does the court even have to approve it? They get to supersede the legislature of the legislature does something unconstitutional, but they can’t pass laws that Congress won’t.

[Lee Moore]

I don't think the Senate's vote in Dec 2021 is very relevant. By which I mean it's totally irrelevant. A Senate vote is just a Senate vote, as legally important as a Spongebob joke, unless and until it turns into something of formal legal moment (eg a confirmation, a Bill or CRA resultion passed in both Houses and signed or at last not vetoed by the President.)

The Court has to go on the law that enables the regulation - passed long ago and on whch the current Senate's opinion is irrelevant - and the terms of the regulation.

[bevis the lumberjack]

The law passed years ago doesn’t specifically address this question. The current Congress said “no” to the extent they said anything, whether you think it’s relevant or not.

I thought legislating from the bench was bad.

[jjrzw72]

You could just as easily say that Congress believed that it had given OSHA the power to enact a mandate and failed to pass a law that would take that power away.

[SimonP]

Bevis, I'm an originalist. I believe that what's important is what's in the statute, and what it meant on its date of enactment. Some unrelated activity in the Senate doesn't bear on the interpretation of the statute.

[David Nieporent]

THERE IS NO POSSIBILITY THAT CONGRESS WOULD GIVE OSHA THIS POWER.

Congress. Already. Gave. Them. This. Power.

Or maybe it didn't. But who the fuck cares what a different Congress, fifty years later, "would" do?

All that matters is what Congress actually did.

[Commenter_XY]

Wait....whoa, whoa, whoa. David, are you saying that Congress did give OSHA the statutory authority to implement a vaccine mandate when they passed the law back in the 70's?

[David Nieporent]

No. That's why I said "Or maybe it didn't."

What I'm saying is that we're interpreting a law passed by the 91st Congress, and therefore the only question we need to ask is what the 91st Congress did. The 117th Congress hasn't legislated on the topic and is thus irrelevant.

[Kazinski]

I think the effects of not granting the stay are dire enough to justify it, but they didn't really want to spell them out in the decision as to exacerbate them.

Specifically the supply chain disruption by firing 100,000's of truck drivers, warehouse workers, meat packers etc.

The administration may well have heaved a sigh of relief at the stay being put in place.

[Martinned]

Given that, on a court full of octogenarians, they didn't even all wear masks gives me a reasonable sense of what the thinking was here...

[Noscitur a sociis]

There is precisely one octogenarian on the court.

[Lee Moore]

Beat me to it.

Moreover the other 8 justices are a long way from their eighties.

7, 9, 13, 14, 19, 24, 26, and 31 years away in fact.

Av age of D Justices = 70.3
Av age of conservative R Justices = 66.0
Av age of squishy centrist R Justices = 57.0

If you're on a SCOTUS Covid deathwatch though, Breyer looks to be a very healthy 83 year old, Sotomayor a rather unhealthy 66 year old, and Clarence, though he looks fine is both black and chubby, which are minor league comorbidities for Covid. Kavanaugh also looks chubby and not that healthy.

Roberts, Kagan, Barrett and Gorsuch look - like Breyer - as if they all have a good shot at making it to a hundred. Perhaps that's why Roberts likes incrementalism. He's got plenty of time to accumulate increments.

[Dilan Esper]

Another possibility: this is a "culture war" case, as I discuss here:

https://dilanesper.substack.com/p/the-supreme-court-as-culture-warrior

The ordinary rules of equity don't apply when the Justices are itching to get into the middle of whatever is currently debated on cable news and twitter.

[bevis the lumberjack]

Or maybe, you know, they simply deferred the lawmaking to Congress. Quaint, huh?

[Dilan Esper]

That's a highly uninformed response. SCOTUS normally doesn't get itself involved in whether or not to stay regulations for violating technical provisions in operating statutes. These cases come up all the time (they are a significant part of the DC Circuit's workload, for instance), and SCOTUS almost never takes them. Not the liberals, not the conservatives. The Justices have limited bandwidth and these cases don't often any institutional need to guide the lower courts in future matters.

"It violates the law" is just purism. The Supreme Court doesn't exist to correct every violation of the law. They take these cases, and dispense with their normal rules, because they want to play to the Fox News set.

[bevis the lumberjack]

As opposed to the three judges on the left, who made their decision based on policy, which isn’t their place. Certainly they weren’t playing to the MSNBC set.

Your analysis is tilted as hell, and if everything were reversed your analysis would be too. Mine is basically consistent with the structure of our government. Call me purist if you want, it’s a helluva lot better than the calvinball you seem to want.

[Dilan Esper]

You are confusing apples and oranges. The votes to grant cert in these cases often/usually come from the conservatives. Once they grant cert, the liberals are of course going to render decisions.

[Alpheus W Drinkwater]

Bevis, did you read or hear Justice Kagan's questions during oral argument? She asked why should courts be getting involved at all, given that the executive branch agency has the experts (arguably) and is answerable to the votes of the people, which the court isn't. It was the three on the left who were against making policy here.

[Commenter_XY]

The 'experts' haven't exactly impressed me with their performance over the last two years. Just saying.

That whole line of questioning from Kagan crashed against the major questions doctrine mentioned by Kavenaugh.

[CommentMonkey]

I think the answer is a species of option 2. The court's conclusion on the merits is that OSHA usurped congressional authority and that it did so on an unprecedented scale. The problem with the mandate, as the court saw it, was not the wisdom or folly of the policy choice but the clear lack of authority for OSHA to make it in the first place.

In these circumstances, it makes no sense to balance the equities in the way OSHA and the dissent argued - 6,500 deaths and 250,000 hospitalizations vs. x number of employees forced out of their jobs, compliance costs, etc. If the executive branch usurps the authority of the legislative branch on such a massive scale, the court should not deny a stay merely because the usurpation might make people better off. That would amount to the court exercising legislative judgment.

It would have been nice if there was more clarification on this point, but it seems to me the case can be distinguished in the future. Where preliminary injunctive relief is sought against the executive branch clearly overstepping its constitutional authority vis a vis Congress, little or no weight needs to be given to the supposed policy advantages of the challenged action. (After all, if the policy advantages are so clear, the people's elected representatives are free to take the same action.) Otherwise, balancing the equities proceeds as usual.

[Longtobefree]

The data on vaccines was not the issue. If it was, "equity" would require consideration of immunity from prior recovery as well as emergency use vaccines. It would also require masking and testing of everyone, regardless of vaccination status.
Not admitting that the vaccinated can get and spread the Communist Chinese Virus, as well as admitting the existence of natural immunity clearly shows medical safety is NOT the point of the mandate.

[John Thacker]

Sure, equity involves considering that. And the data is very clear that the vaccines are safe, save lives, and reduce transmission.

The stronger point is that "equity" demands that patients have a Right to Try, and that equity demands that people realize that the FDA is *far* too restrictive in banning life-saving treatments (or tests), especially when the consideration is between no treatment and one demonstrated certainly to be safe; they demand too high a level of effiicacy and it costs lives.

Longing to be free means demanding that the FDA stop banning life saving drugs and vaccines, not outsourcing your decisions to a highly bureaucratic body. Sometimes who cowers in fear from the idea that a government body has only given an emergency authorization to a vaccine is someone who begs for his life to be run by bureaucrats.

Any consideration of the evidence demonstrates that the FDA is and has always been far too cautious.

[Dilan Esper]

One comment on many of the other comments articulating justifications for what the Court did, rather than hypothesizing as to what the theory is.

Whatever you might say about this, this clearly is a change from the normal way the Court handles equities cases. We have national experts in Remedies law who are saying this- people like Prof. Re and Prof. Lemley.

So if the Court was going to depart from its normal rules, it should have said something about it. Even if you think the idea is really great to not consider real-life impacts in staying a rule you see as illegal, the Court still needs to say what it is doing. The Court owes the litigants that, it owes the legal system and lawyers and judges that, and it owes the country that. It's highly improper to do something like this WITHOUT TELLING US WHAT THE APPLICABLE PRINCIPLE BEING APPLIED IS.

[Stephen Lathrop]

Is it almost as if the Court is trying to hide an elephant in a mouse hole?

[Peter Gerdes]

I think the answer is pretty clearly a version of 2 and, in the context of this case, the remark that they don't get to consider these tradeoffs is really meant to cancel any implication that they might be judging that the harm to liberty outweighs the benefits of a vaccine mandate.

Getting a bit speculative maybe what they should do is weighing is the potential for *illegal* harm. Maybe you don't have any justiciable right to be spared legally justified harm. As such maybe what they should consider in granting a stay is the harm suffered if a stay isn't granted times their probability the stayed law/regulation is struck down on the merits weighed against the harm suffered by if a stay is granted times the probability it is upheld on the merits. But I'm sure someone will explain why they shouldn't do this.

But I guess I don't understand why you fear 2 will lead to a slippery slope. Judges/justices sometimes are very sure about how the merits will turn out other times not.

[Dilan Esper]

The slippery slope is that in most, politically salient cases, the fact that issuing you an injunction could lead to hundreds of deaths whereas leaving an injunction in place may only lead to monetary harm to the plaintiff (that might be protected by setting a bond) is considered an extremely good reason not to issue injunctions. If that rule were changed, or changed in cases where the Court thinks the plaintiff is likely to win, you could have situations where grave harm is done before the Court hears the merits of a suit and, at least some of the time, decides it the other way after hearing all the evidence.

A lot of ideological types are really purists about the law- "well if it's illegal, why should it matter?". But stays and TRO's and preliminary injunctions are decided on very limited records, before discovery, with very little time for lawyers to think about and prepare the best arguments, and without a real opportunity to judge the merits. Sometimes all that stuff can change a judge's mind; I've been in cases as a lawyer where I thought something looked like a slam dunk early on in the case and I became much less confident after discovery. Sometimes that results in a case settling.

So the purist take is not a good take.

[Dilan Esper]

I should have said non-politically salient cases. Damn edit button.

[Kazinski]

There are three major acute crises besetting the country today:

1. Covid
2. Supply chain disruptions (shortages)
3. Inflation

The vaccine mandate isn't probably going to have a big effect on 1, but could cause havoc with 2 and 3. But going and trumpeting: 'we are concerned about the mandates effect on food and consumer goods shortages of the vaccine mandate' is not a good idea. It's speculative, could be seen as a swipe against the administration, and could possibly cause hoarding.

I'll note Canada recently eased cross border vaccine restrictions on truckers in order to keep supply train disruptions from getting worse. It's a real concern.

[Dilan Esper]

The thing is, it's not just about this case. When the Court does this, it sets the rules for later cases. Lower court judges will see this and start refusing to weigh the balance of hardships in other injunctive proceedings.

So you can't just say "well they had a good reason". THEY ARE A COURT OF LAW AND A COURT OF LAST RESORT WITH SUPERVISORY POWER OVER THE JUDICIAL SYSTEM. They need to tell us when they change the rules and why they change them.

And if they can't do that without taking an unjustified swipe at the Biden Administration- well they could have just denied cert and left the lower court ruling in place.

[Angus McCulloch]

It seems fairly clear that SCOTUS was diplomatically saying the gov's case consisted of non-legal appeals to emotion ("All of these people are gonna die!!!") and the absolutely laughable insistence that a standard saying businesses must make a vaccine available is the same as requiring a vaccine.

That's all the government came up with and SCOTUS was saying "we can't consider that. There's literally no legal argument on which these equity considerations stand."

Otherwise, the Court is setting up scenarios where the executive initiates a policy with absolutely no legal foundation, but SCOTUS has to consider "it's good for the public interest" even though the government has given no legal ground on which those appeals to emotion can stand.

[John Thacker]

The equity argument would be stronger, I think, if the OSHA rule had been based on the number of people at a job site (perhaps divided by floor area, etc.) as opposed to the number of people employed by the firm.

[John Thacker]

There was little reason to apply the rule to any business with over 100 employees, even if they are all working remotely, for example.

[jjrzw72]

You could just as easily say that Congress believed that it had given OSHA the power to enact a mandate and failed to pass a law that would take that power away.

[jjrzw72]

Didn’t mean to reply to this comment

[Mark Leen]

Maybe the Court is recognizing there are certain equities it is competent to consider and certain equities that it is not competent to consider.

[Leo Marvin]

More Baude. Less... well you know who.

[Alpheus W Drinkwater]

"Equity for thee but not for me..."

I hope Professor Baude was being ironic when he said this reason would be shocking.

[Daniel Schmutter]

I suspect it’s likely number 6 even though they don’t say it. Balancing of the equities isn’t usually just a simple math problem. It’s more like reverse irreparable harm.

I’ve seen more than one judge boil the factors down to “well, what’s the harm, counsel?”

Here, there is substantial alleged harm on both sides. In such cases courts are unlikely to do that math. That’s where the merits are going to be vastly more important, and that may be what the Court meant by “ It is not our role to weigh such tradeoffs.” Courts don’t get that granular in balancing of the equities. Usually, BoE only matters where the balance is overwhelmingly favorable to one side or the other.