Who Gains in Mandate Challenge?
Terry H. Schwadron
Dec. 26, 2021
We’re about to have a front-row seat as the newly conservative U.S. Supreme Court majority basically decides whether the federal government is supposed to offer — and enforce — health protections in a time of covid.
Beyond the survival, or not, of vaccine mandates, what interests me here are the deeper moves to remake the republic, perhaps permanently, into one that cannot move expeditiously and relentlessly to protect its people in a recognized emergency.
In agreeing to an early Jan. 7 hearing for several bundled appeals of the federal government’s power to set health mandates in a time of pandemic, what we are really watching is whether this court wants to reset federal-state rules, to recognize public health emergencies as special events, to further limit executive authority.
There are a lot of legal, public health and power issues swirling here, and the chance for hypocrisy looms large when you look at the reach over other areas of perceived emergency, from immigration to international conflicts to race and threats of insurrection. Waiting for Congress to set agency rules is antithetical to emergency response.
Among other things, it’s a test of whether Supreme Court deliberations happen in some world other than the reality of once-again rapidly rising covid infections, hospitalizations, and deaths. As with abortion rights, it is as if the questions are all theoretical, without direct and potentially dangerous results in our actual world — at a time when people are going nuts about waiting in line for testing and shutting down shows and businesses anew, and a time in which Donald Trump, thanked publicly by Joe Biden for investing in vaccines, is now promoting them, in his very roundabout way.
At the same time this court will pore over the words of the Occupational Safety and Labor Act governing some of the cases, for example, likely with an eye for limitations sought by several red states who oppose federal mandates, this same court is expanding powers for the governors of those same states to set strict rules that ban mandates.
The justices will be sitting there in masks — or calling in from home — because of the very disease under discussion. As federal workers, Court employees themselves face mandates for vaccines or regular testing.
As columnist Ruth Marcus argued in The Washington Post, the question is “What powers does the federal government possess to combat a deadly virus that doesn’t recognize state boundaries?”
Several Bundled Cases
The several cases coming in for an expedited hearing, a calendaring move that suggests that the Court plans to resolve the cases quickly, involve disputed mandates set using OSHA regulations for private employers, and cases involving a rule set by the Center for Medicare and Medicaid Services (CMS), which requires vaccinations for nearly all health care workers, including nursing home workers.
Briefly, the challenges to OSHA-based mandates for vaccines or regular testing come from states opposing the mandates as well as some business groups. Their argument is that the federal government is interpreting OSHA authority much too broadly, and that states are better suited to handle any such issues.
One court upheld the challenge and blocked mandates, while the next appeals court insisted the mandates were okay to proceed. A lot was made of the general political leanings of each court as the cases ended in recent weeks.
The second group challenging the CMS rules also has seen split rulings, mostly over objections that stem from various religious objections. Generally, the experts writing about the cases see the CMS rules are more favorable for support of mandates to protect Medicare and Medicaid recipients, but shakier on the religious questions that seem to have drawn particular attention of this conservative Supreme Court majority in a variety of fields.
As relevant examples, the Supreme Court has rejected requests from health care workers for exemptions from vaccine orders based on religion but supported challenges to lockdown orders that did not exempt houses of worship from having to close.
Both the OSHA cases and the CMS cases turn on the power of federal agencies to issue binding regulations based on their statutory authority. So, we can expect the literalists on the Court — the same conservative justices — to care more about the power of that language than on the general health menace we face in our world, and their world, daily.
A Move to Limit Power
The context here is that there is conservative interest in limiting federal power. The Federalist Society, which helped to nominate the three newest conservative justices, has consistently pushed for greater restrictions on federal agencies.
Enter vaccines, which have proved the most effective antidote to what now are more than 800,000 American deaths from covid, and the anti-vax movement which preaches individualism over all measurable health outcomes taking root predominately in red states.
So, the absolute legality of the OSHA rules, then, is a matter of who’s doing the judging, and while every circuit in the country can have a challenge, the rules call for a judicial lottery for consolidation. That explains why the cases moved to the Sixth Court of Appeals in Washington, and now to the Supreme Court.
There seems legitimate debate over the statute’s words in allowing rule-setting for private businesses, since it obviously did not anticipate having to mandate medication for a global pandemic emergency. Still, you would think that Occupational Safety would cover not only water fountain safety but death by exposure to contagion.
Not answered by any of this, should a ruling favor the challengers, is who and how we decide to deal with health emergencies. Our Congress is dysfunctional, and the Sixth Court of Appeals ruling insists that courts are not the proper agencies to review public health response.
As I’ve argued previously, we shouldn’t need government mandates to tell us to take vaccines to stop a continuing covid contagion any more than we should need anyone to tell us to use an umbrella when it is raining. But 30% of us are insisting that they won’t follow the rules, and that means 100% of us are at risk — including Supreme Court justices.
The Court ought to allow a ray of realism to shine on these hearings.