The Biden administration has adopted several policies mandating vaccination against the Covid-19 virus. The administration’s desire to increase the vaccination rate is laudable. Vaccines are essential to limit the spread of the disease and especially to prevent severe disease, hospitalization and death — including against the new omicron variant. But the government must respect legal limits on its power.
The regulation governing large employers is legally dubious and would set a dangerous precedent if upheld.
On Friday, the Supreme Court heard oral arguments in cases challenging two of these policies for not respecting those limits. One case, brought by the National Federation of Independent Business and 27 state governments, questioned the Occupational Safety and Health Administration policy requiring employers with 100 or more workers to compel nearly all of them to get vaccinated against Covid or wear masks on the job and take regular Covid tests. The health care case challenges the policy requiring health care workers employed by institutions receiving federal Medicare and Medicaid funds to get vaccinated.
The court should uphold the policy imposing vaccination requirements on health care workers. But the regulation governing large employers is legally dubious and would set a dangerous precedent if upheld.
The broad large-employer mandate effectively gives presidential administrations a blank check to control nearly every aspect of every workplace in the country, going beyond the authority given to the executive branch by Congress. It also goes against long-standing legal doctrines that constrain presidential authority and limit power grabs.
By contrast, the health care worker requirement is much narrower, well within the scope of existing law and does not threaten to set a problematic precedent. It also focuses on protecting a group — hospital patients and nursing home residents — who are especially vulnerable and often cannot effectively protect themselves against the virus.
The sweeping OSHA policy covers some 80 million workers and does so by using special emergency authority that circumvents normal procedural requirements that usually constrain agency action. The 1970 OSH Act authorizes the federal agency to impose these “emergency temporary standard” rules in cases where “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
This special temporary provision allows OSHA to impose regulations without going through the normal “notice and comment” process and other procedural requirements that require the agency to carefully consider the issues involved and weigh comments from affected interests and the public.
For that reason, courts have subjected previous emergency OSHA rules to strict judicial review, with little or no deference to the agency’s judgment. Courts often ended up striking down these regulations. And none of the previous uses of the agency’s emergency power were anywhere near as broad as this one.
The vaccination rule exceeds the agency’s emergency authority in multiple ways. To start, a virus like the one at the root of the pandemic arguably doesn’t qualify as a “substance or agent” in the first place. These terms generally refer to chemicals, liquids or man-made dangers, not living things. Perhaps Covid once counted as a “new hazard,” but not almost two years after it arrived. It may be that the new omicron variant does qualify as a “new hazard.” But its significantly lesser virulence weakens the claim that it poses a “grave danger.”
Perhaps most importantly, it is doubtful that Covid poses a “grave danger” to employees when the vast majority of them can easily minimize the risk by getting vaccinated voluntarily, thereby almost completely eliminating the threat of serious illness and death.
In Friday’s oral argument, Biden administration Solicitor General Elizabeth Prelogar conceded that OSHA found that a “grave danger” exists only for unvaccinated workers. But if a “grave danger” that justifies the use of emergency authority exists even when workers could easily avoid it, OSHA would have near-boundless authority to use its emergency powers to control almost any workplace practice. Virtually any activity poses grave dangers to at least some people if none of them take even minimal precautions. For example, parking a car in the employee parking lot creates a grave danger for people who refuse to move out of the way when they see it coming.
Democrats willing to trust the Biden administration with such vast power should consider whether they have similar confidence in the next Republican administration (which could be the second coming of Donald Trump!). They would do well to remember the Trump administration’s many abuses of “emergency” executive power, such as exploiting the National Emergencies Act to try to build a border wall and taking advantage of the Covid crisis to shut down nearly all immigration.
Indeed, the issues raised by the private employer mandate threaten to undermine broader constraints on unilateral executive power. One is the “major questions” doctrine, the long-standing (and recently reiterated) rule that courts expect Congress to “speak clearly” when it allows for the exercising of emergency powers on matters of “vast economic and political significance.”
This doctrine is a crucial safeguard preventing the executive branch from using ambiguous statutory language to justify massive power grabs. Here, it’s obvious that the OSH Act at the very least does not clearly give the agency near-total control over workplace activities. Indeed, several justices raised this issue in Friday’s argument.
Another restraint is the constitutional rule that there are limits to Congress’ power to delegate authority to the executive branch to make new laws and regulations as the latter sees fit. The exact limits of nondelegation are much disputed among experts. But, if it has any meaningful bite at all, it surely prevents giving OSHA the sweeping power it claims.
The OSHA employer rule was recently upheld by a divided 2-1 panel of the U.S. Court of Appeals for the 6th Circuit. In an eloquent opinion unsuccessfully urging the full 6th Circuit to take up the case, Chief Judge Jeffrey Sutton warned: “Shortcuts in furthering preferred policies, even urgent policies, rarely end well, and they always undermine, sometimes permanently, American … separation of powers, the true mettle of the U.S. Constitution, the true long-term guardian of liberty.” Trump’s many abuses of executive power should have taught us the importance of this principle.
The mandate for health care workers rests on much firmer foundations. Congress has given the Centers for Medicare and Medicaid Services the power to establish regulations to protect the “health and safety” of Medicare and Medicaid recipients, which the CMS used to establish the Covid vaccination rule. The exact scope of this authority is debatable. But it seems obvious that vaccinating health care workers who serve these patients can protect their “health and safety” by limiting the spread of a deadly disease. Unlike the emergency provision of the OSH Act, this authority is not limited to “grave dangers” or to risks created by “substances or agents” or “new hazards.”
Moreover, unlike the vast majority of the people covered by the workplace rule, many hospital patients and nursing home residents cannot readily protect themselves against Covid because of their age or fragile health — which makes many vulnerable even if vaccinated. And significantly, this rule doesn’t open the door to vast executive power grabs because it does not give any federal agency sweeping power over the entire economy. Thus, the Supreme Court would do well to reverse two ill-advised federal trial court decisions against it.
The Covid pandemic is a dangerous menace, and the Biden administration is right to promote vaccination. But it is essential it do so without undermining legal constraints on executive power. State and federal officials have a variety of options for incentivizing vaccination. They need not and should not torture the law and undermine the separation of powers to do so.
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