Below is my column in the Hill on the review of the OSHA vaccine mandate imposed by the Biden Administration. Courts like the United States Court of Appeals for the Fifth Circuit are facing a novel use of workplace regulations in an admitted effort to circumvent constitutional limitations. The question is whether it will work.
Here is the column:
The Biden administration was hit by a broadside last week, when the U.S. Court of Appeals enjoined its use of the Occupational Safety and Health Administration (OSHA) to implement a national vaccine mandate as a matter of “workplace safety.” Not to be deterred, the administration reportedly is pushing forward with a possible extension of that rule to small businesses.
White House chief of staff Ron Klain professed “confidence” that they have found what he previously admitted was a “work-around” of the Constitution, which does not give the president such authority. After all, Klain argued this week, this is no different than requiring hard hats in the workplace.
Klain’s confidence may run into serious constitutional doubts in the courts, however. Indeed, he and other White House officials may be making the case for the 24 states challenging the mandate.
Supreme Court Justice Oliver Wendell Holmes once wrote that “hard cases make bad law.” The same thing might be said about hard-hat arguments. Klain has suffered from an abundance of confidence when some prudence may be preferred at the Justice Department. Like President Biden, he has vacillated between claiming the authority to require vaccinations and then backtracking to claim only the authority to “urge” vaccinations.
Biden eventually acknowledged that he does not have the authority to order a national mandate directly. That is when Klain again confidently rushed in where wiser government lawyers fear to tread. He announced that the White House had found a way to evade the constitutional limitations: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
Many of us often criticized former President Trump for undermining Justice Department lawyers with damaging comments later cited by courts when ruling against his administration. Now Biden and Klain seem to be competing for the greatest admissions-against-interest, including a prior admission from President Biden that they would be pursuing a presumptively unconstitutional measure simply to buy more time to spend more money. Klain is celebrating a way to evade constitutional limitations — but for courts reviewing the OSHA rule, that is akin to a husband telling a spouse that he has found a “work-around” to his vows by redefining extramarital relations.
On Sunday, Klain further explained that the OSHA rule is “common sense . . . if OSHA can tell people to wear a hard hat on the job, to be careful around chemicals, it can put in place these simple measures to keep our workers safe.”
The problem is that OSHA itself failed to see that “common sense” meaning until the White House pushed the work-around. After President Biden announced that OSHA would make the declaration, the agency appears to have reverse-engineered its interpretation to fit the order. For years, OSHA debated whether it can or should issue an “Infectious Diseases Regulatory Framework” covering “airborne infectious diseases.” It has never issued such a framework and, in the past, has done no more than requiring employers to offer workers such things as Hepatitis B vaccination.
Moreover, OSHA is using a work-around of its own to avoid the rule-making process, which can take a great deal of time and require the agency to answer a great many questions. OSHA used an “emergency temporary standard” (ETS), but that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” The ETS, however, is designed to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.” It is not a rule to be used for convenience so a president can impose a mandate indirectly that he cannot impose directly.
OSHA regulations are designed for dangers inherent in a given workplace or industry. In the case of hard hats, things fall, and workers need to protect their heads. Likewise, if workers are being exposed to a toxic chemical in a given industry, that industry can face an ETS. The idea is to stop businesses from creating dangerous conditions once people enter workplaces.
But this national vaccine mandate is different. The administration arguably is using the workplace to make society at large safer. White House deputy press secretary Karine Jean-Pierre seemed to make that point on Monday when she insisted that OSHA clearly has this authority because “more than 750,000 people have died of COVID. You have approximately 1,300 people a day, who continue to die a day, as I said, from COVID. If that’s not a grave danger, I don’t know what else is.”
However, those are people dying in society at large, not in workplaces. While some may have contracted the virus in the workplace, courts may demand a closer nexus to a “grave danger” inherent in the workplace. The White House has expressly admitted that it is seeking to “reduce the number of unvaccinated Americans by using regulatory powers and … these requirements will become dominant in the workplace.”
It is not even clear that the rule is necessary. Courts have uniformly upheld the right of employers to impose mandatory vaccination or testing requirements as a condition for employment; states have enhanced authority over such public health measures, too.
This is, admittedly, a novel issue, and there are good arguments on both sides. But it also is a generally-worded statute that can be interpreted broadly, and I expect a split in court decisions — and that only increases the likelihood of a Supreme Court review. Once there, the Biden administration could be giving some justices an opportunity to review not mandates but OSHA’s discretion over such mandate orders. A majority of the court has shown an interest in rolling back the so-called Chevron Doctrine, which affords agencies great deference in the interpretation and enforcement of federal law.
After long debating whether it even has this authority, OSHA has suddenly found it, and then has issued one of the most comprehensive health-based standards in its history — all without rule-making or debate. Ironically, the Supreme Court warned against such sudden agency “finds” of regulatory authority. In 2014, the court ruled that “When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decision of vast ‘economic and political significance.’”
Indeed, the Court recently rejected Biden’s effort to continue the eviction moratorium under the same type of sweeping interpretation by saying “[i]t strains credulity to believe that this statute grants the [agency] the sweeping authority that it asserts.”
In other words, Klain’s confidence may not be shared by some on the court.
The Justice Department will have to find a way around Klain’s “work-around” rationale. It also will need more than a hard-hat rationale in this “hard case,” if it wants to avoid bad law.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.