The Supreme Court is preparing for arguments on January 7th in three cases looking at the legality of the vaccine mandate issued by the Occupational Safety and Health Administration (OSHA). Courts have split on what White House Chief of Staff Ron Klain admits was a “workaround” of the limits on the President’s authority. Lower courts, however, are still adding potential mandate cases for expedited consideration. On New Year’s Eve, Judge James “Wesley” Hendrix of the U.S. District Court Northern District of Texas enjoined the mandate issued under the Head Start programs by the Biden administration. The opinion follows the same general analysis as many of the prior cases in finding that this “workaround” will not work.
Like the OSHA rule, the new rules under the U.S. Department of Health and Human Services were put through quickly and without a “notice and comment” period of review. The rules also are unprecedented in their claim of authority to use this program to effectively implement a national vaccine mandate. It requires not just masks for children over the age of 2 but requires staff, contractors and volunteers in the program to be vaccinated by the end of January.
Judge Hendrix found that “there is a substantial likelihood that the mandates do not fit within the Head Start Act’s authorizing text, that HHS failed to follow the APA in promulgating the mandates and that the mandates are arbitrary and capricious,” and stated that it “preliminarily enjoins their enforcement in Texas.”
What is most notable about these cases is that they focus on the Chevron Doctrine, a doctrine affording agencies great deference in their interpretations and policies. Judge Hendrix found that “the plain language of defendants’ cited authority, the statutory context, and the existing regulations all confirm that the Secretary’s interpretation of ‘performance standards’ is not a permissible construction of the statute. The Court finds that plaintiffs are substantially likely to succeed on their claim that defendants exceeded their statutory authority.”
I have long been a critic of Chevron over its expansion of agency authority. The law is reflective of a dangerous trend in our government with the rise of federal agencies. Federal agencies have become a virtual fourth branch of government and that is one too many in our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the expanding role of agencies in resolving political and social controversies.
The vaccine mandates of the Biden Administration have created a target rich environment for justices who want to curtail Chevron, which will make the Jan. 7 arguments particularly interesting.
Here is the opinion: Texas v. Beccera