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.