Saturday, November 13, 2021

The Spurious Constitutional Issues in the OSHA Vaccine Mandate Litigation

 by Michael C. Dorf

Yesterday, a panel of the U.S. Court of Appeals for the Fifth Circuit stayed the Biden Administration's vaccine mandate for employers with 100 or more employees. The bottom line is wrong but not entirely unreasonable, as I shall explain. However, in the course of its opinion, the Fifth Circuit states (but does not ultimately rely on) an extremely dangerous view of two constitutional issues: the scope of congressional power under the Commerce Clause and the limits on congressional power to delegate rule making authority to federal agencies. Its statements on these points are reactionary. Unfortunately, at least one of them may portend an unwelcome doctrinal change from the conservative supermajority on the Supreme Court.

(1) Sub-Constitutional Issues

The plaintiffs' challenge to the Emergency Temporary Standard (ETS) raises legitimate questions of administrative law and statutory interpretation. For example, why the 100-employee threshold rather than a trigger more closely tied to health risk? As the appeals court observed, the number of employees is at best a weak proxy for COVID risk. A small workplace crowded with, say, 99 employees working cheek by jowl, poses a much greater risk than, say, a firm that employs hundreds of truck drivers each out on their own. The ETS justifies the 100-employee threshold on the ground that smaller firms may lack the resources to administer the mandates, which is fair, but one can also question whether the mandate is needed for all large firms. 

The challenge raises other sub-constitutional issues. Does the statutory grant of rule making authority to the Occupational Health and Safety Administration (OSHA) to regulate workplaces really cover hazards--such as an infectious disease--that have no special connection to the workplace? Did the agency adequately consider the challenges even large employers will face in implementing the ETS--which requires covered employers to mandate that employees get vaccinated or submit to weekly COVID testing plus masking?

To be sure, I think the Fifth Circuit ruling is problematic even in its sub-constitutional analysis. For example, the court wonders how the risk of COVID can be an "emergency," given that the disease has now been spreading for nearly two years. That's an odd objection, however. Failure adequately to address an emergency does not make the emergency go away. Even if a fire has been burning in a neighborhood for weeks, it remains an emergency for the residents of the homes it hasn't yet destroyed.

Moreover, the statutory authorization for an ETS requires only that the agency determine that employees face "grave danger from exposure to . . . physically harmful" "agents" and that the ETS "is necessary to protect employees from such danger." The COVID ETS seems to fit that description. Yes, and as noted above, one can question whether a pathogen that spreads everywhere falls within OSHA's jurisdiction over workplaces and, even if so, whether the ETS is necessary in all settings in which it applies, but those aren't objections regarding what constitutes an emergency.

I could say more about the subconstitutional elements of the court's ruling. Perhaps the worst aspect is its weighing of the equities (pursuant to determining whether to grant the stay). While finding irreparable harm to the plaintiffs due to the costs of complying with the ETS, and despite reciting a test that includes as one of four factors the question "where the public interest lies," the panel says that the "stay will do OSHA no harm whatsoever."

Of course not. But what about the health and safety of the people who, as a result of the stay, will be at greater risk of COVID exposure? The court says that the public interest is "not reducible to dollars and cents," which I expected to be followed by some discussion of the public interest in preventing illnesses and deaths. But nope. The only non-monetary public interest the court counts is in "maintaining our constitutional structure and maintaining the liberty of individuals to make intensely personal decisions according to their own convictions—even, or perhaps particularly, when those decisions frustrate government officials."

The failure even to mention, much less count, avoiding illness and death as part of the public interest is stunning and, in a word, evil.

(2) Constitutional Blunders

The Fifth Circuit's constitutional analysis--although apparently dicta--is dead wrong on one issue and wrong on a second issue under current law but perhaps a harbinger of future SCOTUS rulings.

(a) Commerce Clause. The court casts doubt on the constitutionality of the vaccine mandate even assuming that it is authorized by Congress, indeed, even if it were passed by Congress itself. Why? Relying on the votes of five Justices in the Supreme Court's 2012 decision in the first Affordable Care Act case, NFIB v. Sebelius, the panel says that "the Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity."

What?! The ACA contains two kinds of mandates. The NFIB decision resolved the challenge to the individual mandate for certain persons to purchase health insurance. It's true that five Justices thought that congressional power under the Commerce Clause does not extend to mandating that people engage in economic activity. However, no one questioned that Congress has the power to impose the distinct employer mandate that employers provide health insurance for their employees. And of course the OSHA ETS is a mandate on employers, not employees. NFIB has no relevance.

So why did the Fifth Circuit panel think otherwise? The court essentially treated the ETS as passing through employers to reach employees, stating that ETS "commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing." The suggestion is that if Congress lacks the power to compel an individual to perform an act, it lacks the power to compel a firm engaged in interstate commerce to compel employees to perform that act. However, there is no such principle of constitutional law.

Here's an example. The Immigration Reform and Control Act (IRCA) of 1986 was signed by President Reagan and requires employers to verify employment eligibility of employees. How? The employees must fill out form I-9 and provide supporting documentation. Yet, to paraphrase the Fifth Circuit, a person's choice to remain silent about their immigration status and thus work eligibility is noneconomic inactivity. Does the Fifth Circuit panel think IRCA is unconstitutional?

More broadly, there are numerous contexts in which the government cannot mandate some act but can require it as a condition of engaging in some act the government can regulate. Presumably the Commerce Clause does not authorize Congress to require people to submit to vision exams. Yet that fact casts no doubt on Federal Aviation Administration rules requiring airplane pilots to submit to such exams as a condition of licensing.

Put simply, the Fifth Circuit panel's Commerce Clause analysis is reactionary and frankly bonkers.

(b) Nondelegation Doctrine

Persons familiar with constitutional law will know that since the 1930s the Supreme Court has not invalidated any act of Congress as an impermissibly broad delegation of rule making power to a federal agency. So long as Congress supplies an "intelligible principle"--an incredibly loose limit that has been met by such requirements as promoting health or regulating in the public interest--it satisfies the nondelegation doctrine.

To be sure, conservative scholars and judges have long sought a tightening of the nondelegation doctrine as part of an effort to hobble regulation. To date, however, they have not succeeded directly. That said, a number of administrative law and statutory interpretation principles have emerged from SCOTUS in recent years that are somewhat effective substitutes for a more searching nondelegation doctrine. Chief among them is the "major questions" doctrine, which essentially says that a clear statement in a statute is required before the Court will read a delegation to authorize an agency to decide major questions of policy, as opposed to implementation.

In its discussion of nondelegation, the Fifth Circuit panel decision mostly relies on the major questions doctrine. Yet the majority opinion also says that "serious constitutional concerns" would arise if the court were to hold that Congress had delegated to OSHA the authority to adopt the ETS. That's clearly wrong under current doctrine, however. A statute that expressly gave OSHA the power to mandate health measures even with respect to hazards such as infectious diseases that exist outside the workplace would be considerably more detailed and thus more of an "intelligible principle" than numerous broad delegations that have been upheld in the last eighty-plus years.

Lower federal courts are not supposed to anticipatorily overrule SCOTUS precedents. However, if they do, and if the Supreme Court ends up agreeing with them, they can get away with it. Because the Fifth Circuit's suggestions about nondelegation are only dicta, they are unlikely to be important in this case. However, as an indication of where our Trumped up federal courts, including the Supreme Court, are headed, the suggestion of a reinvigorated nondelegation doctrine portends ill for the future of the regulatory state.