The US Court of Appeals for the Sixth Circuit on December 17 in a bipartisan, 2-1 decision upheld OSHA’s vaccine-or-test requirements for the American workplace and lifted a stay previously put in place by the Fifth Circuit. Judge Jane Stranch, an Obama appointee, joined by Judge Julia Gibbons, appointed by George W. Bush, wrote that the requirements did not exceed either Congress’s or OSHA’s powers. She also noted that any religious objections were premature, especially since the rules allow religious exemptions and accommodations. The challengers later that day presented papers to the Supreme Court seeking to overturn Stranch’s well-thought opinion.
In their Supreme Court papers, the challengers rely heavily on a lengthy dissent penned by Judge Jeffrey Sutton, another Bush appointment, who would have preferred that the full Sixth Circuit, all 16 judges, hear the case from the get-go. Sutton wanted the full court to hear the matter because Republicans have a 10-6 advantage on the court, with six of those judges having been appointed by Trump.
Because Judge Sutton was only able to carry eight Republican votes, the case stayed with Stranch. The rest is now history. But perhaps only for the time being, since Sutton’s strained dissent is now being paraded before the Supreme Court as having gotten it right.
The essence of Sutton’s dissent, though often couched in impressive-sounding legalese misleadingly lifted from various Justices’ opinions, can be distilled to three propositions: “Individualism” and free choice are good. “Conformist” mandates, something most of us call “laws,” are bad. And last, COVID is not that serious.
Judge Sutton’s dissent began with a bold proposition, for which he cites no authority, that “a Commerce Clause is not a collective-action clause.” Maybe in Sutton’s world, but certainly not in grand constitutional scheme of things. Truth is that “the” Commerce Clause is exactly that, since federal use of the power almost always relies on an aggregation of collective action/inaction. Think Farmer Filburn and his patch of wheat.
“[C]ollective-action,” Judge Sutton then proselytized, cannot constitutionally override “American individualism …, a national trait that has done the country some good from time to time.” “[N]on-conformist ways,” he surmised (apparently without giggling), “had something to do with American businesses bringing vaccines to market more quickly than any vaccine in history and doing so more quickly than any other country, collectivist or not, has been able to do.” Collective action, Sutton warned, threatens to disrupt not only individualism, but also America’s capitalistic form of government.
Further, Sutton complained, Congress did not clearly grant OSHA authority to require vaccines in the first place. When federalism is at stake, as is true when agencies take on traditionally local functions, congressional delegations must be apparent. This “federalism clear-statement canon,” he opined, establishes that Congress’s delegation of workplace power to OSHA is not sufficient. States are responsible for regulating “a medical procedure like a vaccine or a medical test.” This is even more true, Sutton noted, where little federal benefit follows regulation. COVID’s risks here are relatively small, he opined, not being “serious” and presenting something less than “grave danger.”
Sutton’s dissent is impossible to square with modern American constitutional law. Putting aside Sutton’s head-scratching attempt to minimize COVID’s risk to workers, as well as his irrelevant (and fantastical) assertion that “American individualism” and “non-conformist ways” caused the rapid development of COVID vaccines in America, Sutton’s constitutional analyses cannot be squared with anything in modern textbooks.
The Supreme Court has made clear, after all, that delegations of legislative power to agencies can be, and usually are, somewhat ambiguous. Indeed, an “intelligible principle” is all that is required. Delegations are rarely (if ever) expected to be specific in the way Sutton claims, as made clear by the existence of so-called “Chevron” deference, which requires that courts defer to agencies’ interpretations of their enabling statutes. Under Chevron deference, it is up to OSHA to decide whether its enabling statute allows it to require testing and vaccination, both of which OSHA has required in the past.
Sutton’s attempt to twist his congressional clarity doctrine around federalism principles is vapid. First, there is no such thing as a “major questions doctrine” that wrenches from agencies in favor of unelected judges major policy decisions. As Judge Stranch pointed out, there is instead a rarely used exception for agencies that attempt major policy decisions that are outside their wheelhouses. The IRS’s attempt, for example, to give meaning to health care laws, and CDC’s doomed regulation of landlord-tenant relations.
Further, while the Supreme Court has observed that Tenth Amendment principles can require greater specificity in delegations from Congress, there is simply no serious Tenth Amendment problem presented by OSHA’s vaccination/testing rules. At least since 1937 the Supreme Court has recognized that Congress can concurrently with States regulate the private-sector workplace without any Tenth Amendment limits. It happens all the time. Only when Congress tries to force States’ hands, otherwise “commandeers” their actions, does the Tenth Amendment come into play. OSHA’s rules do neither.
Under the Commerce Clause, meanwhile, Congress and its agencies regularly regulate both the American workplace and Americans’ health. The accepted constitutional analysis announced in 2005 (by a bi-partisan majority on the Supreme Court), which Sutton remarkably fails to mention, focuses on whether Congress could rationally conclude that the regulated activity, here the health of American workers, when aggregated, could have a substantial effect on the American economy. Workers’ susceptibility to a disease that has killed 800,000 Americans, shuttered businesses, interfered with the interstate movement of goods, cost American jobs, and required massive federal fiscal outlays, most certainly meets this test.
Sutton seeks to fight a battle that was lost a century ago. Justice William Day wrongly predicted in Hammer v. Dagenhart, the ill-starred child labor case, that federal regulation of the American workplace will put “freedom of commerce … at an end” and will “[destroy] our system of government.” As we know, it did neither. Prohibiting child labor, ensuring safety, limiting hours, mandating fair wages, barring discrimination, protecting collective bargaining, you name it, none of this has killed the economy. None of it has caused the country’s collapse. Nor will OSHA’s reasonable response to COVID.
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, Biden Administration’s OSHA Vaccine Mandate: Judge Sutton’s Dissent, JURIST – Academic Commentary, December 21, 2021, https://www.jurist.org/commentary/2021/12/mark-brown-osha-vaccine-mandate-judge-sutton/.
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
