Vax Mandates – An Informal Legal Analysis And A Civics Review

There is a lot of discussion these days about the Covid vaccines – do they work, how long do they last, and what are the side effects are only a few of them. Following the President’s announcement that he has lost patience with those best described as “you people” (whomever “you people” might be), he announced the intention to mandate the vaccine. Can he do that?

Up front, let me share with you that I was double-dosed with the Pfizer vaccine almost as soon as it was available. The purpose of today’s discussion will be about the legal basis for a mandatory vaccination.

In my day, we took civics or social studies classes in which a teacher droned on about the three branches of the Federal government: Judicial (the Federal Courts), Legislative (the Congress, comprised of the Senate and the House of Representatives) and the Executive (the President). In terms of dealing with the country’s laws, the simple concept is this: the Legislative Branch writes the laws, the Executive Branch enforces the laws and the Judicial Branch interprets the laws in connection with their enforcement. Simple, right?

Where things have become complicated is with the growth of “federal agencies” since the first part of the twentieth century. An early example is how the Pure Food and Drug Act of 1906 (passed by the Legislative branch) begat the Food & Drug Administration through which the Executive Branch would enforce it. Such enforcement is simple enough (such as by hiring inspectors to go into processing plants) but there is also a need for additional fleshing-out of the law by administrative rules.

For today’s purposes, we are concerned with the Occupational Safety and Health Act of 1970 which spawned the Occupational Safeth & Health Administration (OSHA) by the Nixon Administration. So to review, Congress passed it and the Executive Agency was created to enforce it via inspections and additional rules.

In law, administrative rules have become something like the impenetrable thicket that surrounded Sleeping Beauty’s castle during Princess Aurora’s long rest. Rules are written by the Agency staff, then published in the Federal Register with a period allowed thereafter for comments by interested parties. In other words, everyone whose ox may be gored suggests ways to lessen the damage to one’s own ox, often at the cost of added goring of the oxen of others. This is after those same actors have hired lobbyists to reduce the possibilities for subsequent goring when the law is still being written. Let’s just file it all under “Crony Capitalism”. After the comments are considered the rule may be edited some, and it is then published as final.

This all takes a long time – many months, and occasionally years. Remember when cars started appearing with square headlights instead of round ones? It was only at the end of a process like this. But what if there is an emergency? Agencies sometimes write emergency rules to apply – but these are legal only until the actual rule can be put into place.

OK, now on to vaccines. The Presedent (as chief of the Executive branch) says he wants an emergency rule mandating vaccines. He has the authority to order OSHA (which reports to him) to write an emergency rule mandating vaccines in every workplace. So far, so good.

But every rule written by an agency, whether emergency or permanent, has to square with and be authorized by the statute upon which the agency’s authority rests. And therein has been a messy constitutional boundary fence between Legislative and Executive authority. Every law student remembers the Schechter Poultry Case of the 1930’s, which resulted when one of FDR’s agencies tried to enforce a rule but was stopped by the Supreme Court, which held that the administrative agency was trespassing on the turf of the Legislative branch. That concept (often called the non-delegation doctrine) is that Congress cannot delegate its legislative job to the Executive branch, which has only the power to make interpretations. This is an over-simplification, but you get the idea.

Today’s big question: Does anything in the Occupational Safety & Health Act of 1970 contemplate requiring employees take a vaccine? There are several questions here, including whether we are dealing with a workplace hazard in the first place. OSHA can certainly require hard hats on construction sites or ear protection in loud factories. But can it require an employee to wear that hard hat in the shower at home or in a restaurant while eating dinner with the family on a Saturday evening? Or earplugs at a KISS concert? These examples may be extreme, but they illustrate the problem – If you come into work on Monday morning with your ears ringing after a Saturday night concert, are you a danger to others in the workplace? I would argue that you do not, but there are surely others who would disagree.

That law, by the way, does not apply to everyone. If you are self-employed, work for a company with under 10 employees, work for a church or for the government (State or Federal), no rule administered through OSHA will affect you (whether it concerns a vaccination or anything else).

Even if proponents get past the statutory language and find some vague provision from that 1970 law that might kinda sorta be said to allow for mandatory vaccines for the first time in 2021, is such a requirement something that should require legislative action? It is not a small matter in a representative democracy whether a rule that tells free citizens how to live comes from a body that has been elected or a body that is not elected but is a part of the “permanent bureaucracy”. There is bound to be a lot of discussion about the non-delegation doctrine (which has been run through the wringer on several occasions since the 1930’s) and is probably ripe for further development.

Part of the reason for this discussion in the first place might be the unfortunate role reversals that the Legislative and Executive branches have engaged in recent times. Congress has become less and less adept and thrashing out detailed statutes and more and more willing to pass outlines that push the hard questions off on unelected Agencies. As a general rule I tend to favor working with systems as they were designed, so favor a Congress that has debates and makes decisions on issues that affect us. But what do we do if Congress abdicates that role and its members spend their time scoring political points with one side trying to jam bazillion page bills largely written by lobbyists and activists (and which almost nobody has read) through the process? “Here, make this new law make sense” is a job eagerly taken up by administrative agencies, but I am not so sure this is a good thing.

My own general impression (and I will freely admit that I have not studied this in depth) is that the 1970 statute cannot fairly be said to have contemplated mandatory vaccinations for a general worldwide pandemic that has nothing to do with a workplace (other than that exists in the workplace in the same ways it exists everywhere else). And without a statutory basis for the mandate, no OSHA emergency rule is going to stand up in court. OSHA has engaged in emergency rulemaking quite seldom over the decades, and those rules have been struck down by courts at least as often as they have been blessed by them.

There are a lot of variables here – most Judges are not as political as most people assume, but there is a wide range of legal philosophies that result in an equally wide range of what may potentially be found acceptable. There will be highly motivated litigants arguing each side and we do not know the case that will surely become “the big one”. Each side (the Pros and the Cons) will look for a case with the best facts for its side. It is always easier to justify strong enforcement of a law that enforces stopping at red lights when the family on the way home from the beach is hit by the drunk who ran the light rather than when it is the family that ran the light and killed the drunk who had the right of way. We also do not know the procedural questions in a particular case, which will determine burdens of proof going forward, which can affect the standards under which courts of appeals must operate. For example, will the government sue a company to enforce a rule or will a company sue for relief from the rule? The government will have a burden of proof in the first example and the private company in the second. I have said many times over the years that whenever litigants step into a courtroom, all bets are off.

The bottom line is that our Federal system does not permit “because I said so” lawmaking, but only lawmaking that results from legitimate legislation from Congress buttressed by rules which flow from and are tethered to that legislation. My own guess is that the underlying law will not support an OSHA rule that mandates vaccination for employees – at least not under this statute and under this Agency for this particular situation. But as noted above, there is a lot of room for argument at every point in the process. Every lawyer has lost cases he should have won and won cases he should have lost because anything can happen. To put another way, if it was clear, nobody would be arguing.

20 thoughts on “Vax Mandates – An Informal Legal Analysis And A Civics Review

  1. J.P. all very interesting, and unbelievably complicated, but better understood in your explanation!

    I think the question I would ask, is that does the law then, allow for people who partake in risky behavior, be allowed to knowingly bring the results of that behavior into your workplace, which may result in your workers getting sick and dying? My Dad, passed away now, but God bless him, a life long insurance man, would tell you the flip side of that coin is getting your ass sued off by people who got sick because you did not protect them in the work environment, and as we all know, the results of a jury trial on that, one could only imagine, especially looking at the billions given away by juries in ruling against big, bad, corporations. My Dad was both “pro” tort reform, and believed in the concept of “professional” juries, as opposed to the ever dumbing down general public. If I was working someplace in proximity to anti-vaxxers, and was told I had to do it by my employer, and was not made “safe” by my employer, and I got sick, I would certainly sue everyone involved and the horse they rode it on…

    I always laugh when I think of humorist Fran Leibowitz, who once said she hopes she never runs afoul of the law, because it would be impossible to be tried by a jury of her peers! Thus goeth America…

    BTW, last week I got my general flu shot, and this week I got my 3rd vax booster. Since I’m retired, I’m probably never within 15 feet of anyone anyway, but as a kid raised during polio, and stood in line at grade school for our shots, I view this whole situation as a great study of Darwinism at its finest. A journalism buddy sent me this site called Sorry Antivaxxer. Interesting…

    https://www.sorryantivaxxer.com/

    Liked by 1 person

    • I feel kind of sorry for employers right now. As you note, if they don’t mandate they could potentially be open to claims as you note. The flip side is also true – if these shots turn out to have unintended consequences for even a small proportion of people.

      I don’t want to get into a debate about the vaccines themselves, but am naturally leery of something that is supposed to have universal application – particularly when it is forced. In one sense the human body is pretty standardized, but there is also an incredible variety in conditions, ailments, allergies and sensitivities. The peanuts that are fine for most people are decidedly not fine for others.

      I think our parents generation was generally impressed by experts. Dr. Spock sold a lot of books. People our age and younger have, I think, a healthy skepticism of the credentialed class.

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      • Let us also not forget that “right to work” states may also leave you zero recourse but to follow whatever your employer wants you to do, so if they’re worried about getting sued for having a dangerous work environment full of anti-vaxxers, they could certainly mandate you get the vax or else take a hike, and be within their rights to do so!

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  2. I would expect the relevant factual point to be that there is at present no FDA-approved vaccine for Mr. Biden’s handlers to mandate. The Pfizer vaccine that is available is not FDA-approved, and the Pfizer vaccine that is FDA-approved (Comirnaty) is not available. There is currently no federal mandate nor do I expect there to be one. As with so much else in the Covid campaign, I think that Sun Tzu’s observation applies: “All warfare is based on deception.”

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    • That is indeed a little-discussed point. I do not profess any expertise in this area, but have read that the pre-approval version carries a liability waiver in favor of the drug manufacturer where the FDA approved version (which is legally considered a different drug) does not. Which (if true) could explain why the approved version is not being made available. Any private company that mandates an experimental drug could eventually find itself on the wrong end of a lawsuit.

      Right now there are many other potential sources of mandates, such as the threatened mandate on Federal employees and Federal contractors (which involves many companies and which would presumably be enforced by some method other than OSHA). Also some state or local governments and some companies are pushing for such mandates on their own.

      The question I find the most interesting is the constitutional one – as I understand it, the only case that has considered the constitutionality of a public health mandate is Jacobson v. Massachusetts from 1905. Just being old doesn’t make a case’s holding wobbly, but there has been a whole lot of constitutional jurisprudence that has been decided since then. We should not forget that Plessy v. Ferguson (separate but equal in racial accommodations) was the law of the land in 1905. If I were arguing in favor of the constitutionality of vax mandates I would really want something stronger than a 1905 case to serve as my jumping-off point.

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  3. Someone on the radio remarked recently that federal agencies really constitute a fourth branch of government; establishing checks and balances of power unfortunately remains an ongoing process.

    I am thinking back to a few months ago with what Biden said about the CDC putting up a new eviction moratorium (paraphrasing): It will probably be found to be unconstitutional but it’ll take some time before they decide that, and in the mean time it accomplishes what I want at least for a little while.***

    That may be the idea here as well; even if the courts strike it down eventually, it gives cover to companies for at least a few months to implement these kinds of mandates, which the Biden administration hopes will move the needle enough on vaccination numbers.

    Like you, I got the vaccine as soon as possible when it became available for my age group. I’ve actively encouraged others to do the same, to the point of alerting people about places / events in which the vaccine was being quickly and easily administered. But, as with the other restrictions put in place over Covid, I’ve been against mandates of any kind on it. I’m happy when I hear about people getting vaccinated, but I do hope this gets struck down in the courts sooner rather than later.

    ***I personally think this is a dangerous attitude coming from someone who swore to uphold / defend the constitution.

    Liked by 1 person

    • My own opinion is that the whole “Administrative State” has gone way beyond the system of government we set out to have. But then again, there are probably a lot of folks today who like the current system better than what the founders envisioned. Federal law really has become a nearly impenetrable thicket.

      The President’s abilities or attitudes when it comes to the Constitution (or other legal matters, for that matter) is a topic I shall respectfully decline to address.

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  4. I can’t tell you how many billable hours we have had on the subject of vaccines in the workplace … it makes up for the hours lost at the onset of the pandemic when everything shut down. The big local news today was Beaumont Hospital (many different hospitals operating under this name) suspended 370 workers who refused to get the COVID shot. They gave them until Monday to get it done – the story stressed that they are welcome to come back and NOT terminated. But Beaumont has many employees so they fall under the “if you have X number of employees, they get vaccinated” – if only they’d done this earlier in the pandemic, we might have less cases. I’ve been double vaxxed too and will get my booster shot tomorrow since the CDC just authorized boosters for Moderna (which I got) and J&J. I’m 65 and just passed the six-month mark – I wanted to beat the rush before others who will want the Moderna as their booster shot as its efficacy is supposed to be a wee bit better than Pfizer and also the J&J vaccine which they say is okay to mix and match.

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  5. Thank you for tackling this very complicated topic. I have two middle-schoolers, who are taking their civics class this year, and it’s amazing how the old “3 branches of government” concept doesn’t apply any longer… not just with vaccine mandates, but pretty much with everything.

    I, for one, miss the Constitution. I fear that Covid killed it.

    Liked by 1 person

    • I kind of think the Constitution may have been mortally ill before Covid, but we’ll never know. Most people don’t really appreciate the differences in how the government worked before the double whammy of the great depression and WWII (with FDR overseeing most all of it). We are in some really interesting times with the first significant tugs of war between State and Federal governments since, well, I’m not sure.

      And yes, I wonder just how much of the Constitutional systems are taught in schools these days. Probably not much. And as a fascinating aside, there was an op-ed in today’s WSJ in which the author (whom I believe is a law professor, but don’t actually recall) argues that public education as presently constituted is actually itself unconstitutional. I have never seen that argued before, but it is interesting to consider.

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  6. An excellent explanation.

    Truth be told, I have started about a half-dozen comments since yesterday but I haven’t been happy with them. But suffice it to say, this attempted mandate will have unforeseen outcomes, some which are now starting, such as the loss of medical staff as mentioned by Linda above. That, too, is a public health problem.

    The advent of a vaccine itself has also brought about all-or-nothing mindsets. Not all who refrain are “anti-vax” nor or all who take obtain it living in raw fear. Yet the nuances of thought seem to be bulldozed into only two camps of thought. That’s not good, either.

    Good job, JP. This is one of your best posts yet.

    Liked by 1 person

    • Thank you sir. I agree that both nuance and principle seem to be dead these days. What irritates me is the total disconnect between things that should be related. Why those in favor of personal autonomy when it comes to abortion and personal autonomy when it comes to mandatory vaccines are not the same people is a puzzler. The older I get the more convinced I become that 98% of political argument (on both sides) follows a process that goes 1) Decide what answer you want and 2) reason backwards from there to justify your preferred result. I am an adherent of the 2% of outliers that follows the opposite process, which is 1) Decide what you believe and 2) apply it to a given situation to reach your conclusion.

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      • Don’t get me started J.P.! People that “claim” autonomy and belief in the constitution are also the people that are trying to ban abortion, based solely on their religious construct, are in fact, trying to ram their religious beliefs down the throats of others, a more complete constitutional violation doesn’t exist! In addition, those that claim the sanctity of the individual, and that their constitutional rights supersede any government, are also perfectly happy to have the government invade your privacy, including the most horrendous violation, between you and your doctor (again abortion). The only thing I’m amazed with over the last twenty years, is the insane duplicity of the neo-con republican! They’re perfectly happy to both cite, and violate the constitution whenever it works to their advantage!

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      • I get your point and don’t want to start an argument on this, but I think your position misses the point that two lives are involved in an abortion and not just one.

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