WILL HIGH COURT LIMIT PANDEMIC HEALTH EDICTS?
What powers does the federal government possess to combat a deadly virus that doesn’t recognize state boundaries?
Must the federal government stand by helplessly when red-state governors, rather than adopting vaccine and mask mandates, instead block them — harming their own residents in the face of a pandemic that has already cost more than 817,000 lives?
Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?
Those questions are at the heart of two cases that the Supreme Court is to hear early next month. The first involves an emergency rule issued by the Occupational Safety and Health Administration (OSHA) requiring that companies with more than 100 employees working indoors mandate that they be vaccinated or, if not, wear masks and be tested weekly. The second concerns a vaccination requirement for workers in hospitals, nursing homes and other healthcare facilities that participate in the federal Medicare and Medicaid programs.
The decisions will likely turn on a technical parsing of the language of the statutes invoked to justify the rules. But underlying both disputes are fundamental questions about the proper division of authority between federal and state government and federal regulators’ capacity to respond quickly and effectively to emergency situations.
It’s good that the court has agreed to hear these cases, in particular that it took the unusual step of scheduling oral arguments while considering the cases on an emergency basis. But these mandates represent aggressive, even unprecedented, uses of federal regulatory authority, and there is ample reason to fear what might happen to them in the hands of a conservative court that wants to elevate state power, is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.
Consider the court’s ruling earlier this year that the federal Centers for Disease Control and Prevention (CDC) exceeded its authority in issuing a moratorium on evictions for those in areas with high COVID-19 spread.
“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the court said in an unsigned opinion. “But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”
Of the pending cases, the bigger legal lift may be the broad employer mandate, which applies to two-thirds of private-sector workers and is being challenged by more than half the states and a coalition of business groups. The Biden administration justified the action under the Occupational Safety and Health Act of 1970, which allows OSHA to issue emergency rules when it deems them “necessary” to protect employees from “grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
It doesn’t seem like much of a textual stretch, if a stretch at all, to consider the coronavirus an “agent” that poses “grave danger” to workers. OSHA has previously used its authority to protect health-care workers against transmission of other infectious diseases, including HIV and hepatitis, and has required employers to make the hepatitis B vaccine available to employees at risk of contracting the disease on the job.
The U.S. Court of Appeals for the 6th Circuit, in the case being reviewed by the Supreme Court, concluded that “OSHA’s authority includes protection against infectious diseases that present a significant risk in the workplace, without regard to exposure to that same hazard in some form outside the workplace.” (Another appeals court, the 5th Circuit, disagreed before the cases challenging the OSHA rule were consolidated and transferred to the 6th Circuit.).
But OSHA has never before imposed such a
The federal vaccine mandate for health-care workers seems an obvious way to protect vulnerable patients at hospitals and nursing homes. But it’s opposed by 24 states.
broad, nationwide and non-industry-specific requirement. The 6th Circuit, in a decision by Obama appointee Jane B. Stranch, asserted that the COVID-19 mandate “is not a novel expansion of OSHA’s power; it is an existing application of authority to a novel and dangerous worldwide pandemic.”
Maybe, but in the pandemic, workplaces aren’t uniquely risky — “grave danger” lurks everywhere. OSHA’s vaccine-and-testing mandate feels less like a solution to a workplace problem than like using the law as leverage to get more people vaccinated. As Judge Joan L. Larsen, a Trump appointee, noted in dissenting from the 6th Circuit ruling: “OSHA has never issued an emergency standard of this scope. Each of this rule’s few predecessors addressed discrete problems in particular industries.”
The vaccine mandate for health-care workers, challenged by 24 states, raises similar questions, though the statute seems even more clear: It authorizes the programs to enact regulations to protect “the health and safety” of recipients. “It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” U.S. Solicitor General Elizabeth B. Prelogar told the court in seeking review of two lowercourt decisions that put the vaccine mandate on hold.
Perhaps the court will split the difference. Maybe the justices will rule against the administration in both cases. Only one thing is clear: Whatever law it makes will remain long after the worst of the pandemic has passed, and will bind agencies trying to respond to unforeseen emergencies down the road.