It was with scorn and constitutional alarm that the Fifth Circuit Court of Appeals on November 12 turned aside the Biden administration’s attempt to require Covid vaccinations for the nation’s workforce. The ruling has set a formidable precedent for judicial scrutiny of Biden administration policies concerning Covid, as well as constitutional questions in general.
In order to avoid the drawn-out and detailed procedures, including public comment, required by executive-branch administrative law, the administration commandeered a rarely used power of the Department of Labor’s Occupational, Safety, and Health Administration (OSHA). Under a regulatory authority unique to itself, OSHA may impose an Emergency Temporary Standard (ETS) on the nation’s workplaces and have it go into effect immediately.
The ETS vaccination mandate OSHA promulgated on November 5 required all private businesses of 100 or more employees in the country to have their workforces vaccinated against Covid or mask and have weekly Covid tests. On September 9, President Biden had imposed a similar vaccination requirement on all federal employees.
In its 50-year history, OSHA has used its ETS emergency powers only on ten occasions, for example, concerning asbestos and benzene. It has never done so to require national immunizations. Also, as the Circuit pointed out, courts overturned five of those past OSHA ETS initiatives.
Individual plaintiffs, employers, and the states of Mississippi, Louisiana, Texas, South Carolina, and Utah filed suit against the OSHA mandate. They asked that the mandate be stayed from going into effect pending the outcome of their suit, which seeks a permanent injunction. The Circuit considered the normal rules of jurisprudence concerning stays and injunctions and issued a stay, holding that the mandate was not “likely to succeed . . . for a multitude of reasons.”
After the loss at the Fifth Circuit, and in light of similar challenges in other federal courts, the Biden administration has suspended the vaccination mandate. Now, in keeping with rules governing multi-circuit litigation, the Sixth Circuit Court of Appeals will take over the Fifth Circuit’s case, BST Holdings, LLC et al. v. OSHA, as well as all other cases nationwide challenging OSHA’s mandate.
OSHA Mandate’s Various Flaws
The Biden administration argued that its basic statutory authority together with its special emergency authority allowed it to issue an ETS because Covid had created a “grave danger” to the country by exposing workers to “toxic or physically harmful . . . substances or agents.”
The Fifth Circuit answered that the mandate was “staggeringly overbroad” in that it failed to include, “the most salient fact of all,” that Covid is “more dangerous to some employees than to other employees” (emphasis in original), an example of the latter being employees who work outdoors. At the same time, the mandate was also “underinclusive,” the Circuit ruled, because it fails to protect employees of businesses that employ fewer than 100 employees, which “belies the premise that any of this is truly an emergency.”
In addition, the Circuit said, the mandate failed to consider the “economic consequences to the regulated industry,” quoting its own 1984 decision on OSHA’s ETS powers, in which it stayed OSHA’s attempt via ETS authority to regulate asbestos, determining that it was “invalid.”
Before the vaccination mandate, OSHA had not used its ETS power since losing that case, Asbestos Info. Assn. v. OSHA, which today remains the leading ETS case nationwide. The Circuit concluded that the vaccination mandate “grossly exceeds OSHA’s statutory authority,” and, in creating OSHA, Congress had not intended to create “a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matter of public health affecting every member of society in the profoundest of ways.”
States’ and Individual Rights
Additionally, the case exhibits a breezy attitude by the Biden administration to both the nationwide re-organizing of society that would be created by the mandate and to the constitutional role of the states in the country. Not only is OSHA’s mandate unique in content and procedure, it would pre-empt and nullify what are literally hundreds if not thousands of related regulations imposed by cities, counties, and states across the country and that are currently in effect. Not to mention the widespread personal resistance to the mandate that would occur.
In their brief, the five complaining states attempt to preserve their “sovereign interest” to address the pandemic in their own laws, and they make the constitutional argument that the states have the police power under the Constitution. They cite the 1982 unanimous decision of the Supreme Court in Alfred L. Snapp & Son v. Puerto Rico, a case involving workers’ rights and immigration, in which the Circuit upheld state standing in court to sue on behalf of the “health and well being” of their citizens “independent of the benefits that might accrue to any particular individual . . . including under federal statutes.”
Although not issuing a final ruling on the content of the mandate, the Fifth Circuit Court of Appeals could not resist holding forth at length about the status and role of the states in the Constitution. The “Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic activity that falls squarely within the States’ police power.”
The Circuit continued: “A person’s choice to remain unvaccinated and forgo testing is noneconomic inactivity.” And: “The States, too, have an interest in seeing their constitutionally reserved police power over public health policy defended from federal overreach.”
Quoting the Supreme Court in Bond v. United States, a case involving a conflict between the Tenth Amendment and a federal law implementing an international treaty: “The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ . . . The Federal Government, by contrast, has no such authority.” The brief of the Biden administration made no mention of the police power of the states.
On the allegation of the petitioners that OSHA has acted outside of its powers delegated by Congress, the Biden brief quoted the recent statement by the Supreme Court in its Gundy v. U.S. decision in 2019 that “only twice in this country’s history” has the Supreme Court “found a delegation [of the legislative power] excessive.” The two cases the Gundy court was referring to were the decisions of the Supreme Court in the Schechter Poultry (1935) and Panama Refining (1935), rulings that overturned the delegation of the legislative power to the president and temporarily delayed the New Deal.
Today, there are numerous indications that we are at a similar and historic turning point. Indeed, Senate Majority Leader Chuck Schumer of New York referred to the Covid stimulus legislation passed in the spring as a New Deal measure. White House Chief of Staff Ronald Klain just said Biden’s spending goals are “twice as big, in real dollars, as the New Deal.”
In its decision, the Fifth Circuit emphasized the delegation issue, saying: “The Constitution vests a limited legislative power in Congress” and “The nondelegation doctrine constrains Congress’ ability to delegate its legislative authority to executive agencies.” So, how will the federal appeals courts and ultimately the Supreme Court rule on the coming question of whether there are any limits at all to what powers Congress may delegate to the executive branch?
An apt comparison can be made to the 1952 Supreme Court case Youngstown Sheet & Tube v. Sawyer, in which the Court ruled that President Truman’s seizure of the steel mills in order to prevent a workplace strike during the Korean War — the pandemic of that time — was an unconstitutional seizure of private property.