‘This is not going to be the last word’: What an appeals court decision means for federal vaccine rules

Texas and several other plaintiffs argue the Biden administration overreaches by requiring that businesses with 100 employees or more have staff vaccinated or regularly tested for COVID-19 by Jan. 4, 2022.

By Jill Ament & Caroline CovingtonNovember 8, 2021 1:19 pm, , ,

The Biden administration’s rule requiring larger businesses to have staff vaccinated or regularly tested for COVID-19 by Jan. 4, 2022 was temporarily blocked after an order over the weekend issued by the Fifth Circuit Court of Appeals. Texas was one of a handful of states, businesses and conservative advocacy groups that filed a joint petition to block the rule, issued through the Occupational Safety and Health Administration, or OSHA. They argued the requirement was an overreach of the federal government’s authority.

Professor Steve Vladeck joined Texas Standard to help tease out the court’s rationale, and discuss possible impacts of the decision. Vladeck is the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law. Listen to the  interview with Vladeck in the audio player above or read the transcript below.

This interview has been edited lightly for clarity.

Texas Standard: What was the legal argument that Texas Attorney General Ken Paxton was making in favor of the state’s lawsuit, and a request for a stay on this order?

Steve Vladeck: This is a very early preliminary order by the Fifth Circuit [Court of Appeals], actually, at the request not just of Ken Paxton but of a whole bunch of businesses and business groups in Texas. And, you know, we don’t really know what the rationale was. I mean, the court, in its order on Saturday, just said that the Biden administration’s policy – the vaccinate or test requirement for large employers – raises, in the court’s words, “grave constitutional and statutory questions,” without really getting into what those questions are.

So I think that the Fifth Circuit is planning to move quickly on further briefing on this issue. I think we’ll probably get a longer and more detailed rationale this week, but this is not going to be the last word. There are lawsuits challenging this rule all over the country. It’s possible this case won’t even stay in the Fifth Circuit. There’s an effort to consolidate them all before one court of appeals. So, you know, maybe the first salvo in this legal war. … Certainly not the last.

The Biden administration, presumably, will appeal to the U.S. Supreme Court? How do you see this playing out?

I have to think that some way or another, this case ends up in the Supreme Court. I mean, again, I’m not sure it’ll stay in the Fifth Circuit. There’s a process when you have a whole bunch of simultaneous challenges to an administrative order like this in different courts of appeals to have what’s called a “circuit lottery.” They literally call it that where, you know, they’ll take all these cases and consolidate them before one court of appeals. There’s no reason to assume it will be our local court of appeals, the Fifth Circuit.

But assuming that it ends up before a court of appeals, I think whatever that court of appeals rules – whether they block the vaccinate or test rule, whether they leave it in place – whoever’s on the short side, that’s definitely going to go to the Supreme Court. There is going to be yet another example of a very important policy question reaching onto the Supreme Court through an emergency application through what some of us call the court “shadow docket.”

Is the statutory question here whether OSHA can come out with this sort of mandate?

That’s a big part of it. So, you know, OSHA has fairly broad authority to regulate health and safety in the workplace as long as it finds certain things, make certain findings. What it did in this case is it issued an emergency rule. And I think one of the – there’s sort of two layers of challenges: the first is, have they met the higher bar for an emergency rule; and the second is have they dotted the i’s and crossed the t’s that a vaccinate or test rule really is going to advance health and safety in the workplace?

I think the key, though, is this is often misportrayed by critics as a vaccination mandate; it’s not. I mean, the requirement is that businesses that employ 100 or more individuals, private businesses, have some kind of requirement that employees either be vaccinated or be subject to regular testing to ensure that you don’t have spread in the workplace.

I think that’s going to be the real fight going forward: is this a consistent exercise of OSHA’s statutory authority? Is it an abuse of OSHA’s statutory authority? For the folks who are pitching this in much broader constitutional terms, I really don’t think that’s where the litigation is going to be focused.

You don’t think that it’s going to be focused on a constitutional question?

First of all, I think we should be clear on what we mean by the “constitutional question.” If the constitutional question is, does the government really have the power to force me to get a vaccine? That question was answered by the Supreme Court 116 years ago in a case called Jacobson v. Massachusetts. The due process clause does not protect us from compulsory vaccination, which, again, this isn’t. If the question is whether Congress has the power to let OSHA do this, I think that’s settled by the fact that for the better part of 50 years now, OSHA has had broad authority to regulate safety and health in the workplace.

I think the real issue here is just whether the vaccine or test rule is consistent with the statutory authority Congress has delegated. And in that regard, this hearkens back to the [Centers for Disease Control and Prevention] eviction moratorium, where you heard lots of cries of property rights. But the actual reason why the courts ended up throwing it out was because they concluded that the CDC just didn’t have the statutory authority under the Public Health Service Act to regulate evictions. So I think that’s where the fight’s going to be. And I think what we saw on Saturday from the Fifth Circuit was just the first of what are going to be a whole lot of salvos.

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