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Challenge to vaccine-or-test mandate could upend already shaky precedent on agency deference

American jurisprudence on vaccine mandates dates back over 100 years, but the Supreme Court will likely focus on a 40-year-old administrative precedent that is continually under fire to determine if President Joe Biden can require COVID-19 vaccines and testing for large private businesses. 

In the wake of a Sixth Circuit reversal last week, the high court has docketed over a dozen emergency applications in just the last two days challenging a federal mandate that would require businesses with over 100 employees to require COVID-19 vaccinations or weekly testing. The test-or-vaccine mandate is enforced through the Occupational Safety and Health Administration and is set to take effect on Jan. 4. Without relief from the court, 84 million workers will be affected. 

The court has already seen multiple applications come across its shadow docket concerning state vaccine mandates. So far, it has declined to offer those individuals any relief. What that will mean for the OSHA mandate, however, is still unclear. 

“The OSHA ETS and the CMS Interim Final Rule litigation matters, each of which are headed to the Supreme Court now, present a new question as to whether the federal government agencies have exceeded their authority in implementing their respective vaccine-or-test and vaccine requirements,” Michelle Strowhiro, a partner at McDermott Will & Emery, said via email. “Therefore, while past decisions may be some indication, it is anyone’s guess how the Supreme Court will come out on this latest challenge.” 

As the Sixth Circuit determined Friday, one must only read the agency’s name to understand it has this authority and that the vaccine mandate is distinct from August precedent that ended the federal eviction moratorium.

“In comparing this case with Alabama Association, the Fifth Circuit wrote, ‘But health agencies do not make housing policy, and occupational safety administrators do not make health policy.’ The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health Administration,” a 2-1 majority of the Sixth Circuit wrote Friday. 

Ranging from Republican states and conservative organizations to business groups and construction workers, groups challenging the mandate claim that OSHA does not have the authority to mandate vaccines. 

“For the vast majority of covered employees, the COVID-19-related risk presented by work is the same risk that arises from human interaction more broadly,” Ohio and 26 other states wrote in their brief. “The virus’s ‘potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few.’ Because it is not an occupational danger, it is not the sort of danger that the Emergency Provision empowers OSHA to address.”

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The justices will have to decide if OSHA is acting within its authority to mandate vaccines. 

“The big issue is whether the Supreme Court will show deference to the agency's determination that this is necessary and that it's an emergency,” Lawrence Gostin, a professor at Georgetown Law, said in a phone call.

Specifically, the court could apply the 1984 case Chevron USA Inc. v. Natural Resources Defense Council Inc., which says unless Congress has said otherwise, the courts should defer to agencies where the agency’s interpretation of the law is not unreasonable.  

“I think that the court’s new conservative majority, they're flexing their muscles, and even with the well-established precedents, like Roe v. Wade or Chevron, they seem to be fully prepared to take a different path than the court has done for many decades,” Gostin said. 

OSHA is using emergency temporary standards to issue its mandate. Those standards allow the agency to act to protect workers in cases of “grave danger” presented by workplace hazards. Chevron has a rare exception that requires agencies to get congressional authorization for actions that lead to “enormous and transformative expansion” of its authority. 

“There is some dispute between the circuit courts as to whether OSHA’s actions implicate the major questions doctrine, with the Fifth Circuit applying the doctrine in its order granting a nationwide injunction on enforcement, and the Sixth Circuit more recently finding no applicability in its order dissolving that stay,” Strowhiro said. 

Another factor to consider when analyzing what the court could do in this case is that multiple justices regularly express their animosity to Chevron. Justice Clarence Thomas did so less than a month ago in a Medicare reimbursement case when he floated overturning the precedent. Justice Neil Gorsuch also seemed skeptical of the precedent implying that the government often uses deference for rules to their advantage. 

“If the Supreme Court will take this opportunity to weaken the power of regulatory agencies writ large, it would be a real a significant blow to public health and occupational safety,” Gostin said. 

While the court will likely focus on how Chevron applies in this case, it’s not clear that its other precedents on vaccines do not also apply. 

Previous precedents from the court favor vaccine mandates. It was in the 1905 case Jacobson v. Massachusetts that the court upheld a state’s right to vaccine mandates. In 1992, the court upheld vaccinations as a condition for schools in Zucht v. King. Opponents of the OSHA mandate point to these cases as an example of the court allowing states to enforce mandates, not the federal government, but the delineation isn’t clear. 

“Challengers of the OSHA ETS raised Jacobson and Zucht to argue that the ETS falls within the States’ police power authority, not the federal government,” Strowhiro said. “However, both Jacobson and Zucht concerned challenges to state vaccine requirements under the Fourteenth Amendment and do not address the federalism question of whether states or the federal government, or both, may impose such requirements.”

The case against OSHA asks if the rule can be put on hold while courts consider the merits of the mandate. Most pre-enforcement challenges are just the first battle in a war, but this challenge could be the only one that matters. 

“Practically speaking, OSHA’s ETS is a temporary standard intended to last only six months,” Strowhiro said. “Therefore, while the litigants can continue to fight over the substance, the Supreme Court’s decision on whether OSHA can enforce its ETS is the whole ballgame here.” 

A ruling from the court in this case could have farther-reaching consequences than just the agency’s ability to mandate vaccines or the president’s Covid-19 response efforts. 

“It would have a huge impact, not just on the fight against COVID and President Biden's vaccine mandate agenda, but it would also significantly weaken OSHA's powers to regulate health and safety in the workplace and that has major consequences for everything from workplace injuries and workplace hazards like chemical hazards, and, of course, the spread of infectious diseases,” Gostin said. “So there's a lot riding on this case.”

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Ranging from Republican states and conservative organizations to business groups and construction workers, groups challenging the mandate claim that OSHA does not have the authority to mandate vaccines.