Editor’s note, January 13, 2:45 pm: The Supreme Court on Thursday overturned the Biden administration’s rule requiring most workers to be vaccinated against Covid-19 or be regularly tested for the disease. It allowed another, narrower rule requiring health providers that accept Medicare and Medicaid funds to be vaccinated, to stand.
A raft of cases, all challenging various efforts by the Biden administration to encourage vaccination and control the spread of Covid-19, reached the Supreme Court at once this month. And the Supreme Court announced Wednesday evening that it will hear oral arguments in these cases on January 7 — an unusually rapid schedule, which suggests that the Court plans to resolve the cases quickly.
The first bucket of cases involves an emergency rule, promulgated by the federal Occupational Safety and Health Administration (OSHA), which provides that most employers must either require that their employees be vaccinated or take certain steps to mitigate the spread of Covid-19.
Shortly after this new rule took effect, a right-wing panel of the United States Court of Appeals for the Fifth Circuit raced to hand down an order blocking it. But that case was eventually transferred to the Sixth Circuit, and a more centrist panel of Sixth Circuit judges reinstated the rule. That means that, for the moment, the OSHA rule is in effect — but that could change once a Supreme Court dominated by Republicans appointees gets its hands on it.
The second round of cases involves a rule, promulgated by the Center for Medicare and Medicaid Services (CMS), which requires nearly all health care workers to be vaccinated in order to protect their patients. That includes the overwhelming majority of nursing home workers, who interact daily with older residents who are especially vulnerable to Covid-19.
While there are plausible, but not airtight, arguments that the OSHA rule exceeds that agency’s statutory authority, the legal arguments for the CMS rule are much stronger. As Jonathan Adler, a conservative law professor and one-time crusader against Obamacare, writes: “The CMS rule can be justified as a measure to protect Medicare and Medicaid recipients, which is something CMS clearly has the authority to do.” Nevertheless, the lower courts are split on whether to uphold the rule.
It is never wise to bet that a Democratic administration will prevail before the current slate of justices, but there is some uncertainty surrounding how key justices like Brett Kavanaugh and Amy Coney Barrett will approach pro-vaccination policies.
When religious conservatives seek exemptions from their legal obligations, the Court’s five most conservative members typically treat those requests as matters of transcendent importance. One of the Court’s first major actions after Barrett took her seat in the fall of 2020 was to permit houses of worship to defy occupancy limits intended to prevent religious services from becoming superspreader events.
But Kavanaugh and Barrett have thus far rejected requests from health care workers who claim they should be exempted from vaccination mandates on religious grounds. That’s a sign that they may be more open to pro-vaccination arguments than their previous records otherwise would suggest.
Both the OSHA cases and the CMS cases turn on the power of federal agencies to issue binding regulations pursuant to their existing statutory authority. And the same justices who’ve zealously protected religious conservatives also believe that restricting the power of federal agencies is a high priority. The conservative Federalist Society, which played a significant role in placing many of the justices on the bench, has pushed for greater restrictions on federal agencies since the Obama administration.
But the vaccination cases throw the potential costs of this crusade against federal agencies into stark relief. Vaccine mandates are one of the most effective tools to encourage vaccination, and about 28 percent of American adults remain unvaccinated. CMS estimates that its rule will “save hundreds or even thousands of lives each month.” OSHA estimates that its rule will “save over 6,500 worker lives and prevent over 250,000 hospitalizations” over the course of just six months.
A tale of two circuits
The Fifth and Sixth Circuit decisions concerning the OSHA rule are a microcosm of the larger ideological struggle going on within the judiciary.
Often, when multiple parties challenge a federal policy, their cases are litigated in different federal courts — with different judges handing down competing interpretations of the law.
The litigation over OSHA’s workplace vaccination rule works somewhat differently. Lawsuits challenging the OSHA rule could be filed in any of the multiple federal circuit courts that typically handle appellate cases. But 10 days after the OSHA rule was announced, a federal statute requires the judiciary to conduct a lottery to determine which circuit will hear all of these cases. In this case, the Sixth Circuit was selected in this lottery, which is why a case that was initially decided by the Fifth Circuit got transferred.
One upshot of this unusual process is that there was a brief period — after a lawsuit called BST Holdings v. OSHA was filed in the Fifth Circuit, but before the lottery took place and the case was transferred to the Sixth — when an especially conservative Fifth Circuit panel had jurisdiction over the OSHA rule. And that panel raced to hand down a decision blocking the rule before the case could be taken away from them.
The resulting opinion in BST Holdings, written by Trump-appointee Kurt Engelhardt, is riddled with errors, some of them obvious and egregious.
To give one particularly glaring example, the Occupational Safety and Health Act of 1970 (“OSH Act”) is the federal law permitting OSHA to regulate workplaces. Among other things, it permits OSHA to issue an “emergency temporary standard” regarding workplace health or safety if the agency determines that such a standard is “necessary” to protect workers from a “grave danger from exposure to substances or agents determined to be toxic or physically harmful.”
Yet in an especially confusing part of his BST Holdings opinion, Engelhardt appears to claim that the Covid-19 virus — a virus that has killed more than 800,000 Americans and millions of other people across the globe — does not qualify as an “agent” that is “physically harmful.” An “airborne virus,” Engelhardt writes, is “beyond the purview of an” OSHA emergency rule.
Elsewhere in his opinion, Engelhardt relies on a constitutional argument that closely resembles a discredited interpretation of the Constitution that the Supreme Court used to strike down federal child labor laws in 1918. He also claims that OSHA’s Covid regulation is not valid because OSHA is not a health agency — “occupational safety administrations do not make health policy,” he writes. But OSHA is the Occupational Safety and Health Administration. The fact that OSHA makes health policy is right there in the agency’s name!
After reading BST Holdings, it is difficult to avoid the conclusion that the Fifth Circuit panel simply started with the conclusion it wanted to reach — that the OSHA rule must be struck down as fast as possible — and then raced to toss any argument that could possibly support that conclusion into a published opinion before the case could be transferred to a less ideological circuit.
Judge Jane Stranch’s opinion in In re: MCP No. 165, the consolidated group of OSHA cases that were all transferred to the Sixth Circuit, is the mirror image of Engelhardt’s. A former labor and employment lawyer, Stranch writes about the OSH Act with the intimate familiarity that someone might display when speaking of a lifelong friend.
Stranch quotes at length from authoritative sources establishing that OSHA has broad authority to protect workers from communicable diseases, including the OSH Act itself, which tasks OSHA with “providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.” And it is Stranch who, in a devastating footnote, points out that Engelhardt didn’t even bother to learn the name of the agency he was tasked with judging:
Notably, Stranch’s opinion is joined by Judge Julia Gibbons, a conservative George W. Bush appointee. In a brief concurring opinion, Gibbons makes an argument for judicial restraint that was ascendant among Republican judges two decades ago and that has now given way to the more reactionary approach favored by judges like Engelhardt. “Reasonable minds may disagree on OSHA’s approach to the pandemic,” Gibbons writes in a brief concurring opinion, “but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policymaking responsibilities.”
Though Gibbons’s opinion is just three paragraphs long, it cuts at the heart of what these vaccination cases are all about. Someone has to decide how the United States is going to react to the pandemic, and Congress passed laws giving OSHA and CMS fairly broad authority to make these kinds of decisions. The thrust of Gibbons’s opinion is that the judiciary should honor Congress’s decision.
The thrust of Engelhardt’s opinion, by contrast, is that this decision should be made by judges — even if those judges clearly know nothing about the matters they are deciding.
The courts want more power, and the Supreme Court could seize it in the vaccination cases
As mentioned above, the OSH Act permits OSHA to hand down an emergency rule if such a rule is “necessary” to shield workers from a “grave danger from exposure to substances or agents determined to be toxic or physically harmful.” A separate federal law permits CMS to require hospitals and other health providers that receive Medicare funds to comply with rules that the agency “finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”
The Biden administration relied on these and similar statutory provisions when it promulgated the OSHA and CMS vaccination rules.
As I’ve explained in two previous pieces discussing the OSHA rule, there are plausible legal arguments that the OSHA rule may not meet the statutory definition of a rule that is “necessary” to protect against Covid-19. OSHA’s emergency powers are rarely invoked — although it is understandable that OSHA would invoke them during a once-in-a-century pandemic — and the case law governing those powers is quite thin.
Indeed, it is so thin that reasonable lawyers would struggle to advise their clients on whether OSHA acted within its authority when it issued its Covid rule.
In any event, the conservative judges who’ve criticized the OSHA rule and the CMS rule have relied on much more ambitious arguments than simply haggling over the meaning of the word “necessary.”
Consider, for example, Judge Joan Larsen’s dissenting opinion in the Sixth Circuit’s MCP No. 165 case. Though Larsen, a Trump appointee, does argue that OSHA exceeded its statutory authority when it issued its Covid rule, her opinion also spends several pages discussing the so-called “major questions doctrine,” which the Supreme Court has used to halt agency-created regulations that a majority of the Court deems too ambitious.
Larsen points to the Supreme Court’s opinion in Utility Air Regulatory Group v. EPA (2014), which said that “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” And she argues that the OSH Act does not speak clearly enough to justify OSHA’s Covid rule. Other judges have relied on similar reasoning to attack the CMS rule. And, unsurprisingly, Engelhardt cited this major questions doctrine as one of the laundry list of items that he lists in his effort to undermine the OSHA rule.
The problem with this doctrine, however, is that it is extraordinarily vague. As Stranch writes in her opinion siding with OSHA, “the doctrine itself is hardly a model of clarity, and its precise contours—specifically, what constitutes a question concerning deep economic and political significance—remain undefined.”
When courts hand down such vague and open-ended rules, they effectively transfer power to themselves. Just how significant must an agency decision be before it qualifies as a matter of “vast economic and political significance”? The Supreme Court has not told us the answer to this question. Nor has it told us how “clearly” Congress must “speak” in order to delegate significant power to an agency. In practice, concepts like the major questions doctrine merely give judges a framework they can use to strike down agency actions that those judges do not like.
Not that long ago, the Supreme Court warned against judges relying on such vague justifications for second-guessing a federal agency. As the Court explained in one seminal decision, courts should be reluctant to second-guess federal agencies’ regulatory decisions for two reasons. One is that federal agencies tend to have more specialized expertise than judges — a fact that is obvious to anyone who has read Judge Engelhardt.
The other is that agencies have greater democratic legitimacy than an unelected judiciary. Although “agencies are not directly accountable to the people, the Chief Executive is,” the Court explained in a now-fading era of judicial restraint. Thus, “it is entirely appropriate for this political branch of the Government to make such policy choices.”
But there are far fewer judges like Stranch and Gibbons on the federal courts these days, and far more like Larsen and Engelhardt. That’s worrisome news, not just for the Biden administration but for the thousands of Americans who could needlessly die if the Supreme Court strikes down the OSHA and CMS rules.
Update, December 22, 7:10 pm: Updated with the news that the Court will hear the vaccine policy cases on January 7.