https://reason.com/2021/11/07/here-are-the-arguments-that-persuaded-the-5th-circuit-to-block-oshas-vaccine-mandate-for-private-employers/

The appeals court said the rule, which was published on Friday, raises "grave statutory and constitutional issues."

JACOB SULLUM | 11.7.2021 5:05 PM

The U.S. Court of Appeals for the 5th Circuit yesterday stayed the Biden administration's brand-new COVID-19 vaccine mandate for private employers, which took effect on Friday, when it was published in the Federal Register. The appeals court said the arguments made by the petitioners—a Louisiana supermarket chain and six employees of a Texas company that makes kitchen ventilation systems—"give cause to believe there are grave statutory and constitutional issues with the Mandate."

The vaccine rule, which was announced in early September but was not unveiled until last Thursday, gives businesses with 100 or more employees two options: They can adopt a "mandatory vaccination policy" with limited exceptions, or they can require unvaccinated employees to wear face masks and undergo weekly COVID-19 testing. The White House described the mandate as part of a broader effort to boost the nationwide vaccination rate. The aim, it said, is to "reduce the number of unvaccinated Americans by using regulatory powers and other actions to substantially increase the number of Americans covered by vaccination requirements."

But the federal government has no general authority to protect public health, control communicable diseases, or require vaccination, all of which are primarily state responsibilities. The administration therefore presented the vaccine mandate as an "emergency temporary standard" (ETS) issued by the Occupational Safety and Health Administration (OSHA), which is charged specifically with protecting employees from workplace hazards. As the 5th Circuit indicated, that legal strategy leaves the mandate open to challenge on both statutory and constitutional grounds.

The plaintiffs in BST Holdings v. OSHA, who are represented by the Chicago-based Liberty Justice Center and Louisiana's Pelican Institute for Public Policy, argue that the ETS exceeds the agency's authority under the Occupational Safety and Health Act. Even if it didn't, they say, empowering OSHA to issue such a sweeping order would exceed the federal government's power to regulate interstate commerce and violate the nondelegation doctrine, which constrains lawmaking by executive agencies.

The ETS option, which OSHA rarely uses, allows the agency to circumvent the usual rule making process, which typically takes years, by imposing regulations that take effect immediately upon publication. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a "grave danger" to employees "from exposure to substances or agents determined to be toxic or physically harmful or from new hazards." It also has to show the emergency standard is "necessary to protect employees from such danger."

As a general matter, the plaintiffs in the 5th Circuit case argue, the ETS goes beyond OSHA's mission to protect "occupational health and safety" because "it is not related to the workplace." The agency "has authority over workplace-related hazards," they say, "not any hazard one might encounter anywhere in the world."

The plaintiffs' 5th Circuit brief notes that "OSHA has never attempted to implement a rule this broad." Although the agency has been mulling an "Infectious Diseases Regulatory Framework" covering "airborne infectious diseases" since 2010, it "has repeatedly shelved the suggestion, leaving it to languish on the agency's no-action agenda." The only previous OSHA standard dealing with vaccination was much narrower, requiring that "employers whose workers could be exposed to blood or other potentially infectious materials at work offer free Hepatitis B vaccination to employees." Even that standard did not require vaccination, and it did not deal with a general, population-wide threat from a communicable disease.

More specifically, the plaintiffs argue that "COVID-19 is not a toxic substance or agent," adding that "OSHA cannot attempt to shoehorn this disease into the phrase 'new hazards.'" That phrase, they say, should be understood in context to exclude airborne viruses: "Because Congress expressly allowed for an ETS to be issued for 'substances or agents determined to be toxic or physically harmful,' the catch-all phrase to encompass other hazards must be read in light of, and limited to, items similar to those that come before it."

Otherwise, the brief says, OSHA "would have unbridled power to promulgate any regulation that would have the arguable effect of preventing the spread of a communicable disease." Such measures could include "a shutdown of an entire
industry [such as meatpacking] that might harbor a high [incidence] of COVID-19," "a nationwide shutdown of all employers engaged in interstate commerce," "a nationwide mask mandate on all customers visiting OSHA-regulated businesses," or even "a rule mandating [an] appropriate regimen of vitamins" aimed at boosting employees' immune responses.

The Supreme Court has cautioned against assuming that Congress intended to authorize executive actions with broad economic implications if it did not explicitly say so. "When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy," the Court said in 2014, "we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'"

The plaintiffs' brief says OSHA's claim that it is responding to a "grave danger" justifying an emergency standard is belied by the timing of the ETS. The regulation was published nearly two years after the beginning of the pandemic, nearly a year after the Food and Drug Administration (FDA) first approved COVID-19 vaccines for "emergency use," and more than two months after the FDA gave the Pfizer vaccine its full approval. "The extended timeframe for the ETS undermines any claim of exigence," the plaintiffs say. "And the real kicker is the same day the ETS was released, November 4, the White House also announced it was delaying its federal contractor vaccination mandate from December 8 to January 4, again undermining its assertion of exigency." That is also the deadline for private employers to start complying with the ETS published on Friday. The plaintiffs suggest that "truly 'grave dangers' do not wait to spread until after the holidays."

The brief also questions whether the ETS for private employers is "necessary" to protect against the threat posed by COVID-19. When OSHA issued a COVID-19 ETS for the health care industry in June, the rule did not include a vaccination requirement. "The fact that OSHA's previous ETS, issued just months ago, did not find the need for a vaccine mandate even for healthcare workers, who treat COVID-19 patients, undermines OSHA's assertion now that such a requirement is necessary," the plaintiffs say. They also note that OSHA supported in-person instruction of public school students even when the vast majority of them were not vaccinated, which suggests that other safeguards may suffice.

The brief argues that the new ETS is "underinclusive" because weekly testing can miss COVID-19 carriers, because employees who are vaccinated can still carry the virus but don't have to be tested or wear masks, and because the rule does not apply to customers or other visitors who may transmit COVID-19 in the workplace. At the same time, the plaintiffs say, the rule is "overinclusive" because it "does not account for vulnerability related to age or preexisting health conditions," because it does not accept naturally acquired immunity as a valid reason to forgo vaccination, and because, while the ETS "excuses remote and outdoor workers from its scope," it "covers every other employee even while acknowledging employees in different roles face vastly different risk levels."

The brief says several of the individual plaintiffs "rarely interact with colleagues in person and should not be required to vaccinate or show a negative COVID-19 test since they are highly unlikely to spread COVID-19 to colleagues they may only see a few times a year." And since the ETS "applies to every workplace of an employer of 100 or more employees," the plaintiffs say, it "does not consider the different degrees of risk associated with differing workplaces." Yet "it cannot be considered 'necessary' as to all such workplaces."

Even if Congress wanted to give OSHA the authority it claims, the plaintiffs say, doing so would run afoul of the nondelegation doctrine, which aims to preserve the separation of powers by requiring an "intelligible principle" to guide regulation by executive agencies. Under OSHA's reading of the law, the brief argues, the agency has "plenary power to establish whatever legal requirements [it] wishes, regardless of how attenuated" their relationship to workplace safety may be. According to the government, "OSHA's newfound authority empowers it not simply to set safe levels of potential carcinogens in the workplace, or require safety equipment and employee trainings, but to regulate the off-site medical decisions of employees completely disconnected from work." If OSHA "can require that companies mandate vaccines," the brief asks, "what can it not require?"

The plaintiffs also argue that Congress itself does not have the authority to demand that private-sector employees choose between vaccination and testing plus masking. According to the Supreme Court's understanding of the Commerce Clause, the federal government can regulate "activities having a substantial relation to interstate commerce," even when those activities themselves do not cross state lines. In deciding whether a given regulation meets that test, courts are supposed to consider "the economic character of the intrastate activity"; whether the regulation contains a "jurisdictional element" that may "establish whether the enactment is in pursuance of Congress' regulation of interstate commerce"; congressional findings regarding the regulated activity's impact on interstate commerce; and whether that impact is too "attenuated" for the regulation to pass muster under the Commerce Clause.

In this case, the regulated "activity"—the decision to forgo vaccination—is not only not "economic"; it is not even an "activity." The plaintiffs argue that forgoing vaccination is analogous to refraining from purchasing government-approved medical insurance, a decision that a majority of the Court agreed could not be reached under the Commerce Clause in the 2012 Obamacare case National Federation of Independent Business v. Sebelius. "If Congress can regulate employees' individual health decisions under the Commerce Clause," the plaintiffs say, "then it can mandate that employers require their workers to attend the gym weekly or to eat broccoli"—a reference to a famous hypothetical in the Obamacare case.

What about a "jurisdictional element"? The plaintiffs' brief notes that "the mandate's limit to employers with 100 or more employees does not actually limit its reach to interstate activities," since "some employers with more than 100 employees do not engage in interstate activities at all," while "some employers with fewer than 100 employees engage in extensive interstate activity."

Nor did OSHA (or Congress) "make any findings regarding the effect of COVID-19 vaccinations and testing on interstate commerce." The agency's avowed aim is to protect unvaccinated employees from the risk posed by their own choice to remain unvaccinated. If those choices can be said to affect interstate commerce, the plaintiffs say, it is only by "pil[ing] inference upon inference," which the Supreme Court has said is not permissible as a justification for federal regulation, since it would "bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."

At this early stage in the case, it is not clear which of these arguments the 5th Circuit found most persuasive, although the wording of its stay implies that it perceives both statutory and constitutional reasons to doubt the legality of OSHA's rule. The court gave the government until 5 p.m. on Monday to "respond to the petitioners' motion for a permanent injunction." The petitioners, in turn, "shall file any reply" by 5 p.m. on Tuesday.

The vaccine mandate faces additional challenges, including lawsuits backed by the attorneys general of 26 states, in the 5th, 6th, 8th, and 11th circuits. Last week The New York Times reported that "legal experts say" OSHA "has the authority to introduce a vaccine mandate." Judging from the 5th Circuit's stay and all the other litigation contesting OSHA's authority, that assessment seems premature.