Some of the Justices at SCOTUS have been reading author (and Sixth Circuit Chief Judge) Jeffrey Sutton. The Court’s per curiam decision in National Federation of Independent Businesses v. Department of Labor (1/13/2022) even makes a not-very-veiled reference to his recent book, “Who Decides: States as Laboratories of Constitutional Experimentation” the subject of our Symposium at SLOG Law Blog. I wish I could feel cheered at our ability to anticipate a trend, but I do not. The decision to stay OSHA’s emergency temporary standard ordering businesses employing more than 100 workers to require them to be vaccinated or mask-and-test puts the fight against COVID in a constitutional Catch-22: Congress must act, or it is left to the states. And of course, the states have varied dramatically in their approach to the pandemic, with governors in Florida and Texas, among others, preempting by Executive Order any effort by local governments to impose even mask mandates (a much lower imposition on bodily integrity than a vaccination by any measure), other states countermanding their Governor’s science-based approach by legislation or through court challenges, while by contrast in New York, you can’t even enter a bar without showing proof of full vaccination. As for Congress, polarization and the anti-science tendencies of a blocking minority pretty much guarantees that neither OSHA, nor any other agency, is going to get the powers it needs via statute to impose federal vaccination or masking requirements in the workplace.
So how did we get here? While there is no question in my mind that the dissent by Justices Breyer, Kagan and Sotomayor has the better of the argument, providing a much more granular analysis of OSHA’s prior use of its regulatory authorities, of the precise interpersonal threat that infected workers pose to their colleagues and their vulnerable family members, and of statutory language in the American Rescue Plan legislation that appropriates money to OSHA specifically for hazard mitigation relating to COVID-19 (which ought to be the end of the analysis in terms of Congressional intent) Justice’s Gorsuch’s invocation of the major question doctrine might make sense in the more rational world that we had, say as recently as 2006-2009, the years between the Ledbetter case and the Lilly Ledbetter Fair Pay Act.
But there is another layer to this as well, which the relatively abbreviated legal analysis in the OSHA decision does not begin to address. That is where the federal public health authorities come from in the first place. All the way back to the 1905 Jacobson case, the US Supreme Court has upheld the ability of local governments to order vaccination; but the question of whether the states’ power to prevent transmission of contagious disease is preempted or shared by federal public health agencies has not, surprisingly, been examined by the Court until now. Last week, following its decision in OSHA, the Court dismissed, without comment, a challenge to the TSA rules on in-flight masking. But TSA did not create that rule itself; it borrowed scientific guidance from CDC, and as an enforcement agency promulgated a rule embodying the science. OSHA’s rule was borrowed in the same sense, but since there is no opinion in the TSA case, we can’t know what distinction the Court is making.
This relevant and often overlooked inquiry-- whether the CDC itself has any enforcement power-- now is a central question on our management of the COVID-19 pandemic in 2022, and epidemics that will arise in the future. As to that, inconsistent legal strategy by the federal agencies has helped engender hostility among conservative members of the Court that, I think, has helped give the nation the very unhelpful result in the OSHA case.
A really good 2018 treatment of HHS’s powers on quarantine in epidemics (exercised in tandem with its subdivision, the CDC) by Michael Ulrich and Wendy Mariner traces regulatory changes made in the wake of H1N1 and more particularly, the 2014 Ebola epidemic in West Africa. They noted that regulatory changes made to clarify interstate quarantine rules to deal with problems that arose as US public health aid workers returned from the hot zone were left by the Obama administration just as they reached the exit doors in 2017. The quarantine power is the starting point for an analysis of vaccination rules, since the purpose of vaccination is, in large part to prevent the spread of infectious disease (such as COVID-19)
The federal statutory authority to promulgate the 2017 federal quarantine regulations derives from Section 361 of the Public Health Service Act (PHSA), codified at § 264 of Title 42 of the U.S. Code, grants the Secretary of HHS authority to “make and enforce such regulations as in [their] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.”
Section 361 treats foreign and interstate travelers differently. But the new regulations blurred the distinctions, arguably expanding the powers of the HHS Secretary. Throughout the first year of the pandemic, I personally harbored a secret dread that then-President Trump would pull out those powers to impose Hollywood-disaster movie style travel restrictions on coastal cities with high COVID-19 rates. Instead, the new regulations sat there until the last months of the Administration, when then CDC Director Robert Redfield used them, of all things, to justify extending and expanding the 120-day federal eviction moratorium that was part of the CARES Act. The moratorium was a very good thing as a policy matter. The problem is that as a federalism matter, landlord-tenant law, and eviction as a subset of that, is overwhelmingly a matter of local authority, as illustrated by the number of cities and states that had their own moratoria. The mistake HHS made, I think, was picking the wrong test case. An incremental approach, focused on historically established federal public health powers, would have yielded better results in the courts.
Extension of the CARES Act eviction moratorium was at best a tenuous application of Section 361 of the PHSA powers, and predictably, it drew a legal challenge in Alabama Association of Realtors v Dept. of Health & Human Services. In Realtors I, Justice Kavanaugh provided the single vote that sustained the moratorium, on the grounds that it was set to expire on its own terms in July 2021. But when the Biden Administration again renewed it, the Court took up the case a second time, finding in a per curiam opinion that CDC had exceeded its powers in the absence of an express delegation in PHSA. The decision foreshadowed the decision in the OSHA case. Both the OSHA case and Alabama Realtors shows a degree of solicitousness to small landlords and business owners absent in relation to tenants and workers. Nonetheless, read together they mean that the Court’s guidance is that PHSA is to be construed narrowly, stripping the CDC of needed tools to combat the spread of any infectious disease, not just COVID-19.
The political valence that these two cases have taken on are going to make it awfully difficult for Congress to give PHSA any meaningful scrutiny as after-action on the pandemic, so that the same ambiguities will be left in both the statute and the regulation, and we will remain as unprotected by federal quarantine and anti-contagion rules then as we are now. States will be left to fend for themselves, and as we know, viruses don’t respect state lines.
Which brings us back to the per curiam opinion in the OSHA case. The six-Justice majority may be correct that in the name of federalism, the Biden Administration can do nothing for workers in American factories and slaughterhouses, whose economic circumstances leave them no choice but to work side by side with unvaccinated and potentially contagious colleagues. They do not appear to dispute the dissent’s claim that 6500 deaths and a quarter million hospitalizations will result for those workers without the emergency temporary standard. In light of that grim data, the Easter eggs (citation to think tank piece published by Justice Scalia while he was teaching at U Chicago Law School and helping to found FedSoc!) and Valentines (two references to Judge Sutton’s dissent, and the third to his book title!) are deeply inappropriate. Somber regret would be more like it.
Addition: On January 25, the Administration formally withdrew the disputed OSHA regulation.