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The Fifth Circuit halted Biden’s vaccine mandate. Here’s what the lawsuits are arguing.

Within hours after the Biden administration issued the mandate, states and employers had filed more than half a dozen lawsuits against it.

- November 9, 2021

On Saturday, a federal appeals court temporarily suspended the Biden administration’s vaccine mandate. Just days earlier, the Occupational Safety and Health Administration had announced a rule that would require all employers of 100 or more employees to ensure that by Jan. 4, all workers had been vaccinated against the coronavirus or were tested weekly. Within the day, states and employers had filed at least a half-dozen legal challenges to the mandate.

On one side, the Biden administration is trying to reduce the spread of a deadly pandemic in which unvaccinated Americans are 11 times more likely to die from the virus than those who’ve been vaccinated. On the other side, Republicans argue that the mandate was an egregious example of federal overreach.

Here’s what each side is saying.

Widespread litigation over vaccine mandates

Within hours of OSHA’s announcement, Texas Attorney General Ken Paxton tweeted that he would sue the federal government to block enforcement of the vaccine mandate, which he characterized as an “illegal, unconstitutional regulation.” And in fact, the Fifth Circuit’s order to stay enforcement of the mandate was responding to Texas’s lawsuit, filed with other employers and states.

Attorneys general in Missouri, Arizona, Idaho, Ohio, Kentucky, and Florida announced similar intentions to sue. Ohio, Kentucky and Tennessee filed suit in Kentucky, arguing that the enforcement of vaccine mandates falls within the states’ authority rather than that of the federal government. These lawsuits allege, among other things, that the vaccine mandate infringes on the 10th Amendment, which provides that powers not delegated to the federal government are reserved to the states. They further argue that the Biden administration’s emergency temporary standard exceeds the authority Congress gave to OSHA.

States have the power to mandate vaccines. Is it an exclusive power?

Most of these legal challenges argue that vaccination falls within states’ — and not the federal government’s — “police powers,” or the power to regulate the health, safety and morals of their citizens. A lawsuit filed by 11 states in the U.S. Court of Appeals for the 8th Circuit argues that by compelling employees to undergo medical treatment, the federal government is intruding on the states’ powers.

Some of the lawsuits also argue that OSHA does not have statutory authority for its action — and even if it did, failed to follow the procedure that the Administrative Procedure Act requires for issuing new rules: publish the proposed rule, accept comments from those who would be affected and then, taking the comments into account, revise and publish the final rule.

The Supreme Court established states’ power to require vaccinations more than a century ago, in Jacobson v. Massachusetts (1905), during the smallpox epidemic. Justice John Marshall Harlan wrote that states had the power to enact vaccine laws to protect citizens, and that it was for the legislature, not the court, to determine how best to protect public health. The Supreme Court affirmed this in 1922 in Zucht v. King when a parent challenged San Antonio’s school vaccine requirement and lost.

But do state governments hold this power alone, or can the federal government do the same — especially in a pandemic that has already killed more than 750,000 Americans?

The federal government is arguing that it does have that authority. In the law that established OSHA, Congress authorized the agency to issue an emergency temporary standard when employees are exposed to a “grave danger” and when an emergency standard is necessary to protect employees from that danger. In these circumstances, Congress provided that OSHA may bypass the typical rulemaking procedure. OSHA is arguing that the pandemic so gravely endangers workers that OSHA can use this emergency power.

Other possible objections

So far, no lawsuits have argued that the mandate intrudes on employees’ religious freedom. That’s because the OSHA rule offers medical and religious exemptions, allowing people with such objections to get weekly testing instead of vaccination.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which extended the First Amendment’s religious freedom guarantees. The RFRA authorizes individuals — and even employers — who feel that a statute violates their religious freedom to sue the government. But the weekly testing option should forestall any challenges.

Further, some lawsuits are likely to argue that the mandate is unconstitutional because of an arcane legal doctrine called the “nondelegation doctrine,” something Pamela Clouser McCann and Charles R. Shipan explained here. Many legal observers are watching to see how far the Supreme Court is willing to go in limiting congressional power.

The mandate will be tricky to enforce

Even if the mandate survives various legal challenges, it’s not clear how the short-staffed OSHA will enforce the new rule. OSHA is allowed to fine employers $13,653 per violation, and 10 times that amount per willful violation of the rule. Given limited staffing, OSHA expects companies themselves to enforce the rule, although OSHA will respond to employee complaints or check on vaccinations while investigating other workplace conditions.

Not surprisingly, Republicans are behind most opposition to the mandate — both outside and inside Congress. Democrat Rep. Robert C. “Bobby” Scott (Va.), chairman of the House Committee on Education and Labor, said “workplace vaccination policies will save lives, protect our economic recovery, and help us finally get things back to normal.” Meanwhile, Rep. Mo Brooks (R-Ala.) introduced legislation to prevent federal funds from being used to implement or enforce the vaccine mandate.

How will a federal judiciary now dominated by conservatives respond to these arguments? We will soon find out.

Miranda Yaver (@mirandayaver) is a visiting assistant professor of politics at Oberlin College and conducts research on lawmaking and health policy implementation.