On November 16 the US Sixth Circuit Court of Appeals in Cincinnati  was randomly selected by the Multi-district Litigation Panel in Washington, DC to decide whether the Biden Administration’s vaccine mandate for American workers, promulgated by the Occupational Safety and Health Administration (OSHA), is legal. OSHA’s rules, which are planned to take full effect on January 4, require that employers with 100 or more employees vaccinate their employees against Covid, or test those who choose not to be vaccinated. Exceptions exist for some employees, like those who work outdoors, and religious exemptions (under Title VII) are built in.

Challenges had been filed across the country to the proposed rules claiming they either go too far or not far enough. A challenge filed in Texas brought a quick reaction from the Court of Appeals (the Fifth Circuit), which on November 12, 2021 declared the rules to be illegal and blocked their enforcement. Relying on a combination of structural arguments under the Constitution’s commerce clause, its assignment of rule-making power to Congress, and states’ rights, as well as the Fifth Amendment’s protection of “liberty,” the Fifth Circuit ruled that OSHA’s rules likely exceeded its powers. The Fifth Circuit case has now been transferred to the Sixth Circuit, where the Biden Administration quickly (on November 23, 2021) moved to dissolve the Fifth Circuit’s decision blocking the rules’ enforcement.

Measured by the briefing in Texas and the Biden Administration’s recent motion in the Sixth Circuit, three basic challenges to the rules predominate, one premised on the Fifth Amendment’s protection of “liberty” and the other two on structural restrictions on federal power built into Articles I and II of the United States Constitution. The latter two arguments under the commerce clause and the non-delegation doctrine, respectively, essentially focus on the premise that the federal government, and especially OSHA, lack authority to require vaccination. Only states can. The Fifth Amendment argument, meanwhile, further limits what the government can do. People have the right to choose what to do with their bodies, the argument goes, and OSHA cannot force treatment upon them.

The details of the structural positions taken by the Fifth Circuit can be complicated, but essentially boil down to whether Congress has commerce clause power to impose a vaccination requirement (mandatory or not) on the American workplace. Consequently, Congress could not have, and did not anyway according to the Fifth Circuit, delegate the authority to do so to OSHA. Even if Congress were to have commerce clause power over vaccinations, the Fifth Circuit ruled, it did not properly delegate that power to OSHA. Covid has little to do with safety in the workplace, the Fifth Circuit surmised, and OSHA therefore could not address it.

Both ends of the Fifth Circuit’s logic appear to contradict existing precedent. Congress pretty plainly has the authority under its commerce power to ensure both workplace safety and Americans’ health. The American workplace has been regulated by the federal government for years, as has the health care industry. OSHA’s vaccine rules appear to fall into the intersection of long lines of cases on both sides, and thus would seem to be doubly supported by existing commerce clause precedent. Simply asserting by fiat, as the Fifth Circuit did, that Covid vaccination revolves around “non-economic activity” and otherwise improperly invades individual “inactivity” would not earn a passing grade in most law schools.

OSHA’s mandate is hardly like Obama-Care’s insurance mandate, which was ruled by the Supreme Court to fall outside Congress’s commerce clause power because of its forcing individuals to enter into the marketplace. The federal government, through OSHA and other agencies, already has a wealth of rules requiring workplace action, all of which are premised on the commerce clause. Any argument that OSHA’s new rules are impermissible because they upset an inactive status quo (no vaccination) would thus seem to prove far too much. If true of a vaccination alternative, the same must also be true of dozens upon dozens of workplace rules.

The Fifth Circuit’s predictions about an improper congressional delegation to OSHA fare no better. Congress clearly has the authority to delegate rule-making power to executive agencies, like OSHA, and has in fact done so here. The only question is whether Congress arguably authorized OSHA to require prophylactics in the workplace to guard against infectious disease. While the language of the congressional delegation says nothing about Covid vaccines, it does afford OSHA the power to pass emergency workplace safety rules. Under the usual rules of administrative deference, OSHA should be given the benefit of the doubt.

A liberty argument under the Fifth Amendment probably has the most traction, especially since the Supreme Court in 1990 ruled (or at least assumed) that individuals have a constitutional right to refuse government-mandated medical treatment. Vaccination is a form of medical treatment, and it seems clear that adults have a liberty interest in refusing required or forced vaccinations.

This is not the end of the matter, however. The public interest can overcome individual liberty, as made clear by the Supreme Court’s 1905 decision in Jacobson v. Massachusetts. There, Justice Harlan sustained a smallpox vaccination law that provided few exceptions, explaining that “in every well ordered society … liberty may at times, under the pressure of great dangers, be subjected to … restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” Subsequent Supreme Court cases have stood by this holding, at least where exceptions exist. For instance, children are commonly required to submit to vaccinations as a condition of attending public school (and in some states private school, too). They are not required to submit to vaccination, however, as evidenced by home-schooling.

A vaccine mandate without any opt-out, whether for kids at school or employees in the workplace, would probably be unconstitutional. Biden’s proposed ruled, however, includes exceptions and opt-outs. In particular, employees may choose not to be vaccinated and opt for testing instead. Testing itself is invasive, though minimally so, and has itself been constitutionally challenged. But the Supreme Court has routinely rejected student and worker challenges to drug-testing requirements. One assumes the same result should hold for virus testing, at least when the testing used is no more invasive than urinating in a cup.

The Sixth Circuit today leans heavily toward the right, with six recent Trump appointees and a super-majority of 10 Republicans out of its 16 full-time judges. Odds are that Republicans will have a majority on any three-judge panel that is selected. Even if Republicans are outnumbered on an initial panel, they can still as a full court override anything a three-judge panel does, something they have not been hesitant to do so in politically-charged cases in the recent past. A petition to have the case initially en banc has already been filed with the Sixth Circuit. Partisan entrenchment being what it is today on the Sixth Circuit, odds are neither a three-judge panel nor a full court will bring good news for the Biden administration. Whichever way it goes, one suspects the Supreme Court will have to have the final word.

Professor Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio.

Suggested citation: Mark R. Brown, Legality of Biden’s OSHA Vaccine Mandate for American Workers, JURIST – Academic Commentary, December 1, 2021, https://www.jurist.org/commentary/2021/12/mark-brown-legality-biden-osha-vaccine-mandate/.

This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org