The Biden administration’s vaccine mandate for large employers was always going to face legal challenges. It made it two whole days before one succeeded in blocking it, at least temporarily.
Last Thursday, the Occupational Safety and Health Administration (OSHA) announced its long-expected rules requiring employers with 100 or more employees to either require those employees to be vaccinated against Covid-19 or to ensure that their unvaccinated employees are tested weekly for Covid-19.
Just two days later, in a rare Saturday order, a right-wing panel of the United States Court of Appeals for the Fifth Circuit blocked those rules. The case is BST Holdings v. OSHA.
For reasons that I’ll explain below, the Fifth Circuit’s order is premature, improper, and appears to be motivated by partisanship — among other things, it applies a legal standard that the same panel of three judges recently refused to apply in a major abortion case.
Yet, while the Fifth Circuit jumped the gun in issuing its order, the case could still end with President Joe Biden’s vaccine mandate permanently overturned — and his broader ability to regulate workplaces undermined. That’s because the petitioners in BST Holdings raise legal arguments that, until recently, were considered quite radical, but that are catnip to the conservative Republicans who currently dominate the federal judiciary and especially the Supreme Court.
Specifically, the BST Holdings petitioners claim that OSHA’s new rules violate the “nondelegation doctrine,” a legal doctrine limiting the power of federal agencies that was largely abandoned in the 1930s, but that the Supreme Court’s conservative majority seems open to reviving.
If the courts apply nondelegation to block the new OSHA rules, that could have a drastic impact on workplace safety. OSHA is the primary federal agency governing health and safety in the workplace. Its rules govern a wide range of issues ranging from manhole safety to hazardous chemicals regulations. A court decision cutting deep into OSHA’s authority could undermine hundreds of rules protecting workers.
Even if the Court doesn’t decide to apply the nondelegation doctrine, there are other plausible statutory arguments that could be raised against the new vaccination rules. And while the Biden administration could raise strong rebuttals, these statutory arguments could conceivably give a court that is eager to strike down the new OSHA rules — but not eager to do significant violence to the web of workplace safety rules that are already in effect — a path forward.
The new vaccination rules, in other words, face a difficult path ahead in a very conservative judiciary. While the rules have a fair chance of being upheld under existing law, there’s no guarantee that the Republican appointees who dominate the federal bench are interested in leaving existing legal doctrines in place.
The Fifth Circuit’s order is improper
Three things are worth noting about the Fifth Circuit’s order in BST Holdings. One is that the order is very temporary. It blocks the new OSHA rules “pending expedited judicial review,” and calls for a rapid briefing schedule that requires all briefs to be filed by late Tuesday afternoon. So it is at least theoretically possible that the court will reach a different result after taking slightly more time to review the case.
Second, the order doesn’t adhere to procedural norms. For starters, the vaccination or testing requirements do not even take effect until January 4 (although a separate requirement that employers give workers paid time off to get vaccinated was in effect before the Fifth Circuit’s order) so it is unclear why the court needed to race to block OSHA’s rule over the weekend.
It’s also not even clear that the Fifth Circuit is the right court to decide this case. When an OSHA rule like this is challenged in multiple federal circuits, a federal statute typically requires all of those cases to be consolidated and heard by a single federal circuit court that is chosen at random from among the circuits where a case is pending. It’s possible that the Fifth Circuit is racing to decide this case so quickly because it wants to enjoin the rule before the case can be taken away from it (although the relevant statute permits whichever circuit winds up hearing these cases to modify or revoke a Fifth Circuit order blocking the OSHA rule).
Third, the three judges who temporarily blocked the OSHA rules — Judges Edith Jones, Stuart Kyle Duncan, and Kurt Engelhardt — are to the right of most judges, even within a judiciary remade by former President Donald Trump’s conservative appointees.
Consider the contrasting ways they’ve treated this law and Texas SB 8 (these are the same three judges who allowed SB 8, Texas’s anti-abortion law, to go into effect).
Jones, Duncan, and Engelhardt’s order in BST Holdings claims that the OSHA rule must be immediately blocked because the petitioner’s arguments “give cause to believe there are grave statutory and constitutional issues with the mandate.” But when confronted with SB 8 — which effectively bans abortions after the sixth week of pregnancy and is therefore wholly at odds with a Supreme Court decision protecting a constitutional right to an abortion until the fetus could live outside the womb — they blocked a federal trial judge from even holding a hearing on whether to suspend the law or not.
So, when abortion providers challenged a law that is blatantly unconstitutional under Supreme Court precedent, Jones, Duncan, and Engelhardt actively sabotaged the providers’ lawsuit. But when litigants hostile to the Biden administration challenged a workplace health rule, the three judges raced to block that rule.
This is not how judges who wish to avoid credible allegations of partisanship behave.
Nevertheless, the three judges’ order highlights a pitfall facing the Biden administration any time it makes a policy change. Jones, Duncan, and Engelhardt are well to the right of the median federal judge, but they aren’t extreme outliers. A large enough minority of federal judges hold similar views that conservative litigants can seek out these judges and secure court orders blocking Biden administration policies — even if those orders are eventually reversed by a higher court.
And there is no guarantee that they will be reversed.
OSHA has the power to set emergency workplace safety standards — something the petitioners want to change
The Occupational Safety and Health Act gives OSHA very broad authority to protect workers’ health and safety. The law permits OSHA to issue binding regulations “to serve the objectives” of the statute, and it enumerates several purposes, including “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.”
Ordinarily, OSHA must jump through a stunning array of procedural hoops before it can promulgate a new rule — on average, this process takes seven years and nine months to complete. But, in rare cases, this long process can be bypassed. The OSHA statute permits the agency to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.”
The new Covid-19 vaccination rule is such an emergency temporary standard.
The OSHA statute involves a fairly common method of lawmaking. Congress passed the law creating OSHA in 1970, and Congress determined the breadth of OSHA’s authority. But it also delegated a fair amount of power to OSHA to determine which workplace safety rules should be in effect throughout the country.
Under existing law, Congress may delegate power to an agency in this way. As the Supreme Court held in Mistretta v. United States (1989), a law delegating regulatory authority to a federal agency is valid so long as it lays “down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”
Mistretta held that this “intelligible principle” standard generally requires courts to defer to Congress’s decision to delegate authority. “In our increasingly complex society, replete with ever changing and more technical problems,” the Court explained, “Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
But this call for flexibility and judicial deference is now very much out of favor among conservative judges.
The BST Holdings petitioners’ case against the new vaccine rules
While cases like Mistretta currently remain good law, a majority of the justices have signaled that they want to replace Mistretta’s deferential rule with a new one encouraging courts to strike down many statutes delegating authority to federal agencies. They want, in other words, to return to a version of the nondelegation doctrine, which holds that there are strict constitutional limits to Congress’s power to delegate authority to agencies.
The leading proposal to breathe life into the nondelegation doctrine was articulated by Justice Neil Gorsuch in a dissenting opinion in Gundy v. United States (2019). Under this approach, a law delegating power to an agency must be struck down unless it is “‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
That’s an extraordinarily vague standard, and it’s not at all clear how Gorsuch’s approach would apply to specific statutes.
Nevertheless, the BST Holdings petitioners ask the courts to wield the nondelegation doctrine as a veto power over OSHA’s vaccine rule. Congress, they claim, “provided no guidance on what is to be considered a ‘grave danger,’ whether a virus constitutes a ‘substance or agent,’ nor whether an illness that has been known about and spreading through the public for almost two years is a ‘new hazard.’” That’s not an argument that would prevail under Mistretta, but it is quite plausible under the vague rule Gorsuch laid out in his Gundy opinion.
One reason this legal argument is troubling is that much of the OSHA statute uses terms that are no more “definite and precise” than phrases like “grave danger” or “new hazard.” What does it mean, for example, to provide “medical criteria” to ensure that “no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience?” A decision applying nondelegation to the OSHA statute could gut a 51-year-old law that forms the backbone of American workplace safety law.
As mentioned above, a court that wishes to strike down the new OSHA rule does not necessarily need to invoke the nondelegation doctrine. A 1984 decision by the Fifth Circuit, for example, suggests that the government carries a heavy burden under the OSHA statute when it claims that an emergency rule is “necessary” to protect employees. That old Fifth Circuit decision could provide an off-ramp for judges who wish to strike down the rule but don’t want to gut a half-century of workplace safety law.
There’s no guarantee that the courts will take that off-ramp if they do strike down the OSHA rule. And, as the Fifth Circuit’s swift order in BST Holdings suggests, at least some judges are champing at the bit to block the Biden administration's new rule.