By: Mark Kaske, Volume 106 Staff Member
“Stop the spread” has been the rally cry across the world since Covid-19 originated in Wuhan, China in December 2019. Just how to achieve this goal, however, has been a controversial and polarizing debate. In the past two years, Covid-19 has ravaged the world, infecting over 290 million people and causing close to 5.5 million deaths. The United States, the world’s richest nation, has fared no better with over 55 million cases and 800 thousand deaths. Nations have drummed up a plethora of solutions to combat Covid-19 including limiting public and private gatherings, restricting travel, and imposing mandatory face coverings, curfews, and lockdowns.
The latest measure to battle the disease is that of semi-compulsory vaccination requirements. On November 4, 2021, The U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) promulgated the “Vaccine-or-Test” Rule that requires workers at companies with 100 or more employees to be vaccinated against Covid-19 or undergo weekly testing. This Rule affects over 84 million people, and tests the federal government’s power to make decisions amid the pandemic.
Unlike the standard notice-and-comment procedures for permanent administrative rules, the Vaccine-or-Test Rule was promulgated under OSHA’s Emergency Temporary Standard (“ETS”) and is supposed to last just six months. The Rule prompted trade organizations and conservative groups to sue the federal government, arguing the agency overstepped its authority. One day after OSHA issued its Rule, the U.S. Court of Appeals for the Fifth Circuit froze it. The Sixth Circuit took control of the consolidated case after winning the multi-circuit lottery and reversed the stay. Afterwards, a group of twenty-seven states and a coalition of twenty-six business organizations asked the Supreme Court to halt the measure. The Rule went into effect on January 10, but citations will not be issued until February 9. On January 7, the Supreme Court heard oral arguments for the Emergency Rule and is expected to release a decision on whether to halt it in the next month.
For an emergency regulation to be upheld, OSHA must show that the emergency regulation is “necessary” to protect employees from “grave danger” due to exposure to substances or agents determined to be toxic or physically harmful. The law vaguely defines the terms “grave danger,” “substance or agent,” and “new hazard.” Where the law provides little guidance to courts, policy implication become more important. The key question is whether the Court should give the agency a pass and allow it to forgo notice-and-comment rulemaking—which typically takes seven years to promulgate a rule whereas an ETS becomes effective immediately. Determining whether a pass should be granted involves two inquiries: (1) is there an actual, imminent, and unforeseeable emergency, and (2) does the rule accomplish legitimate policy goals that balance having an effective (but not tyrannical) government that is democratically accountable while adequately protecting individual’s liberties.
This case illustrates a recurring pattern: political stalemate in Congress pushes presidents to leverage (or abuse) their administrative powers and accomplish their policy priorities through agency rulemaking rather than legislative action. It also demonstrates the separation of powers dispute that occurs between the courts and an administrative agency. This Post discusses the fundamental policy decisions that factor into the Court’s decision as to whether it should stay the Rule or give the agency a pass. It concludes that, given the 6-3 conservative majority, the Supreme Court is likely to stay the Rule.
I. IS THERE AN EMERGENCY?
Given the constant barrage of Covid-19-related news and the rising death toll, it is easy to assume the country is in a state of emergency. The Fifth Circuit, however, held there was no emergency because OSHA waited two years to promulgate its Rule. The Fifth Circuit also highlighted that OSHA stated early in the pandemic, in June 2020, that an ETS was “not necessary to protect working people from occupational exposure to infectious disease, including COVID-19.” It also emphasized what occurred behind the scenes: “After the President voiced his displeasure with the country’s vaccination rate in September, the Administration pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccine mandate. The vehicle it landed on was an OSHA ETS.”
In contrast, the Sixth Circuit held there was an emergency because Covid-19 continued to spread, mutate, and kill, and therefore OSHA should not be punished for failing to act immediately and addressing the disease in progressive steps tailored to the stage of the pandemic. It further noted that it normally takes OSHA around seven years to promulgate a rule, and therefore an ETS is the correct action.
Ultimately, I think it likely that the Court will rule that this is not a valid use of the ETS because the Agency does not clearly explain the rationale for its expansive Rule. For example, it does not consider or explain alternatives for certain industries and companies, and broadly mandates any company with 100 or more employees to comply with its regulation. Therefore, the agency must go through notice-and-comment rulemaking to promulgate a more logical rule.
II. IS THE EMERGENCY RULE GOOD POLICY?
Unaccountable, unelected bureaucrats using an emergency rule raises serious policy questions, especially when the rule excludes public input, becomes immediately effective, and affects over 83 million Americans.
Conservatives and the Fifth Circuit view the Rule as a tyrannical government overreach that infringes on individual personal liberties. Judge Engelhardt stated that the mandate asserts “virtually unlimited power to control individual conduct under the guise of a workplace regulation,” and that OSHA “derives its authority from an old statute employed in a novel manner.” In addition, the Rule “imposes nearly $3 billion in compliance costs, involves broad medical considerations that lie outside of OSHA’s core competencies, and purports to definitively resolve one of today’s most hotly debated political issues.” Finally, Judge Engelhardt highlighted that “the Mandate threatens to substantially burden the liberty interests of reluctant individual recipients put to a choice between their job and their jab.” Chief Justice John Roberts summarized the dispute in oral arguments by stating that the Biden administration decided to use a variety of federal powers to encourage Americans to vaccinate rather than each agency independently deciding whether such policies were appropriate. The Chief Justice asked, if “the government is trying to work across the waterfront,” shouldn’t the court examine “why doesn’t Congress have a say in this?” The argument is straightforward: a gigantic policy decision that affects 25% of all Americans should be left to Congress to decide and not through the back door by an unelected bureaucrat.
On the other hand, liberals and the Sixth Circuit view the Rule as a necessary reaction to the deadliest pandemic in the United States’ history. Judge Stranch, an Obama appointee, stated that Judge Engelhardt concerns are overstated and do not outweigh the benefits of the Rule and the drastic measures that are needed to combat Covid-19. Judge Stranch stated that “OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority” because “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease.” Judge Stranch also stated that “the injuries Petitioners assert are entirely speculative” and “the harm to the Government and the public interest outweighs any irreparable injury to the individual Petitioners who may be subject to a vaccination policy.” Finally, Judge Stranch concluded that “the ETS is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.” In sum, the Sixth Circuit believes that this is a valid policy decision made by an agency in the face of an unprecedented pandemic and any infringement on citizen’s freedoms is necessary to have an effective response to the pandemic.
Overall, I believe the Supreme Court will ultimately stay the Rule for two reasons. First, OSHA waited two years to promulgate the ETS and failed to clearly explain its rationale for its expansive reach. Instead, the Biden Administration used the Emergency Rule as a “work around” to forgo the more stringent notice and comment rulemaking procedures. Second, the Court has repeatedly cut back on the administrative state, and will agree with the Fifth Circuit that inhibiting citizens freedoms by utilizing a historic statute in an unprecedented manner outweighs the policy objectives of having an effective government that can adequately react to the pandemic that has been occurring for over two years.
 CDC Museum COVID-19 Timeline, CDC,https://www.cdc.gov/museum/timeline/covid19.html#:~:text=December%2012%2C%202019%20A,of%20breath%20and%20fever [https://perma.cc/5NM4-FUR6].
 Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times (Jan. 5, 2022), https://www.nytimes.com/interactive/2021/us/covid-cases.html [https://perma.cc/8QAD-3MQ4].
 Policy Responses to Covid-19, Int’l Monetary Fund (July 2, 2021), https://www.imf.org/en/Topics/imf-and-covid19/Policy-Responses-to-COVID-19 (last visited Jan. 11, 2022).
 COVID-19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402 (effective Nov. 5, 2021).
 U.S. Department of Labor Issues Emergency Temporary Standard to Protect Workers from Coronavirus, U.S. Dep’t Lab. (Nov. 4, 2021), https://www.osha.gov/news/newsreleases/national/11042021 [https://perma.cc/T484-8UG3].
 Allie Reed, High Court Vaccine Mandate Case Puts Agency Power to the Test (1), Bloomberg L. (Dec. 29, 2021), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/true/XB6F5EO8000000?bna_news_filter=true#jcite (last visited Jan. 11, 2022).
 Robert Iafolla, Biden’s Workplace Vaccine-or-Test Rule Halted by Fifth Circuit, Bloomberg L. (Nov. 6, 2021), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/true/X97Q8UE4000000?bna_news_filter=true#jcite (last visited Jan. 11, 2022).
 Robert Iafolla, States Launch Legal Assault on Biden’s Vaccine-or-Test Rule (2), Bloomberg L. (Nov. 5, 2021), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/true/XBTS5ING000000?bna_news_filter=true#jcite (last visited Jan. 11, 2022).
 BST Holdings v. OSHA, No. 21-60845 (5th Cir. 2021).
 Lydia Wheeler, Circuit Court Lotteries a Symptom of Gridlock and Gamesmanship, Bloomberg L. (Nov. 17, 2021), https://www.bloomberglaw.com/bloomberglawnews/us-law week/X9M9Q8U0000000?bna_news_filter=us-law-week#jcite (last visited Jan. 11, 2022); see In re: MCP No. 165, Occupational Safety and Health Admin., Interim Final Rule: COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000 (6th Cir. 2021).
 Robert Iafolla, Biden Vaccine Rule Fights Prompt Clashing Calls to High Court, Bloomberg L. (Dec. 30, 2021), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X8C14KPO000000?bna_news_filter=daily-labor-report#jcite (last visited Jan. 11, 2022).
 Andrea Hsu, Biden’s Vaccine-or-Test Rule for 84 Million Workers is Back After Court Lifts Stay, NPR (Dec. 18, 2021), https://www.npr.org/2021/12/17/1065401498/bidens-osha-vaccine-mandate-test-million-workers [https://perma.cc/BU52-UPXZ].
 Greg Stohr, Supreme Court to Hold Special Session on Biden Vaccine Rules (1), Bloomberg L. (Dec. 22, 2021), https://www.bloomberglaw.com/bloomberglawnews/daily-labor report/BNA%200000017de48bd91ba77fe7eb45be0000?bna_news_filter=daily-labor-report (last visited Jan. 11, 2022).
 29 U.S.C. § 655(c).
 Scott McIntyre, The OSHA ETS Mandate Has Been Stayed by the Fifth Circuit Pending Further Court Review. Now What?, BakerHostetler (Nov. 9, 2021), https://www.bakerlaw.com/The-OSHA-ETS-Mandate-Has-Been-Stayed-by-the-Fifth-Circuit-Pending-Further-Court-Review-Now-What#_ftnref8 [https://perma.cc/XW78-3QHW].
 Rich Fairfax, OSHA’s Rulemaking Process: Why Does It Take So Long?, ORC HSE Viewpoints (Feb. 13, 2019), https://www.orchse-strategies.com/orc-hse-blog/oshas-rulemaking-process-why-does-it-take-so-long/ [https://perma.cc/5GS5-2BNS].
 29 U.S.C. § 655(c); see also Mack Trucks, Inc. v. Environmental Protection Agency, 682 F.3d 87 (D.C. Cir. 2012) (describing when an agency can use the emergency exception under the APA). Although the ETS is stated under OSHA and thus does not fall under the APA, the Mack Truck factors are directly relevant and analogous to the OSHA emergency exception.
 U.S. Const. pmbl; see also Thomas Koenig, The Administrative State: Who Makes the Rules?, National Review(Sep. 29, 2020), https://www.nationalreview.com/2020/09/administrative-state-unaccountable-bureaucrats-make-rules/ [https://perma.cc/GD7E-7HFZ] (“[C]onservative critiques of the administrative state reflect a commitment to the values of legality, accountability and liberty.”).
 Wheeler, supra note 12.
 Ariel Bendor & Sharon Yadin, Regulation and the Separation of Powers, 28 S. Cal. Interdisc. L.J. 357 (2019).
 BST Holdings v. OSHA, No. 21-60845 (5th Cir. 2021).
 Id. at 7.
 In re: MCP No. 165, Occupational Safety and Health Admin., Interim Final Rule: COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000, at 19 (6th Cir. 2021).
 Jess Bravin & Brent Kendall, Supreme Court Shows Skepticism Over Biden’s Covid-19 Vaccinate-or-Test Mandate, WSJ (Jan. 7, 2022), https://www.wsj.com/articles/supreme-court-considers-bidens-covid-19-vaccinate-or-test-mandate-11641583505?page=1 [https://perma.cc/7438-PKB9].
 Zachary Popovich & Karla Jones, How America’s Administrative State Undermines the Constitution, Am. Legis. Exch. Council (Oct. 26, 2020), https://alec.org/article/how-americas-administrative-state-undermines-the-constitution/ [https://perma.cc/39VF-HRKE].
 BST Holdings v. OSHA, No. 21-60845, at 17–18 (5th Cir. 2021).
 Id. at 18–19.
 Bravin & Kendall, supra note 28.
 In re: MCP No. 165, Occupational Safety and Health Admin., Interim Final Rule: COVID-19 Vaccination and Testing, 86 Fed. Reg. 61402, No. 21-7000, at 37 (6th Cir. 2021).
 Id. at 15.
 Id. at 37.
 Ilya Shapiro, Symposium: The Court Begins to Strike Back at the Administrative State, SCOTUSblog (June 22, 2018), https://www.scotusblog.com/2018/06/symposium-the-court-begins-to-strike-back-at-the-administrative-state/ [https://perma.cc/M9GN-BHCB].