SCOTUS Blocks Enforcement of Vaccine Mandate

"In all mercantile transactions the great object should be certainty. And therefore it is of more consequence that a rule should be certain than whether the rule is established one way or the other: because speculators in trade then know which ground to go upon."

-- Lord Mansfield, Vallejo v Wheeler (1774) 1 Cowp 143, 153.

In other news, the United States Supreme Court has blocked enforcement of OSHA’s COVID-19 vaccination-or-weekly-testing-and-masking mandate for businesses with 100 or more employees, while leaving a similar mandate in place for health care facilities receiving Medicare and Medicaid funds.

In its January 13, 2022 opinion, the Court explained that OSHA likely “exceeded its statutory mandate” when fashioning the COVID-19 “Emergency Temporary Standard” (ETS), but what does that mean, exactly? Here’s a quick civics lesson: All Federal law ultimately derives from the United States Constitution. If the Constitution doesn’t let the Federal Government make laws about a particular “thing”, say, commerce, education, or man-buns, then it’s up to the individual states or radio talk show hosts to make the rules about that particular “thing”.

Here, we have the “Occupational Safety and Health Act” of 1970, which, simply put, is meant to ensure “safe and healthful working conditions.” §651(b). Does the Constitution let Congress pass such a law? It does. Article 1, Section 8, Clause 3 of the Constitution (known as the “Commerce Clause” to family and close associates) gives Congress the power “to regulate commerce […] among the several states”. So, if your business is operating in “interstate commerce”, then this law applies to you!

“But wait!”, you say (if you were the kid in high school who would remind the teachers they had forgotten to assign homework), what if my business isn’t engaged in ‘interstate commerce’ – what if I own a grape orchard that sells grapes to be made into wine which is only sold in Pennsylvania?” Trust me, that dog won’t bark. If you don’t believe me, just ask Roscoe C. Filburn, of Montgomery County, Ohio. Roscoe, you see, had been minding his own business, growing some wheat to feed the animals on the farm, when the Federal Government came along and said,

“Knock it off, you’re growing too much wheat!”.

Roscoe, occupying himself as he did with diligent study of the law in the off-season replied:

“But my wheat doesn’t go anywhere, it stays right here; how can it be ‘interstate’? And I don’t sell my wheat, I give it to my animals, how can that be ‘commerce’?”

Well, the Supreme Court mulled it over, but ended up giving it this one to the Feds. Roscoe C. Filburn’s growing wheat to feed his animals, you see, instead of buying it on the open market (which is traded nationally), “exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'". Thus, it falls within the Commerce Clause; thus, the Federal Government can regulate it.

And so, the Occupational Safety and Health Administration, which is part of the Department of Labor can therefore boast (which it does, right on its website) that “the class of activities which Congress may regulate under the commerce power may be as broad and as inclusive as Congress intends, since the commerce power is plenary and has no restrictions placed on it except specific constitutional prohibitions and those restrictions Congress, itself, places on it.” Well, all righty then.

Ah, but that’s not the end of the story (I mean, for Roscoe, it was). The vaccination mandate (ETS) is not a statute passed by Congress, it’s a rule conjured up by the Department of Labor. Rules don’t get the same Constitutional protection that laws do because (here comes another Constitutional principal) the “separation of powers” doctrine holds that Congress makes the laws, the Executive branch (which includes the President and the Department of Labor / OSHA) enforces the laws, and the Supreme Court interprets the laws (at least, after Marbury v. Madison, but that’s somewhat of a different issue – do you see now why it takes 3 or 4 years to get through law school?). In other words, the Executive Branch (i.e. OSHA), because it’s supposed to be enforcing laws and not making new ones, can only do what the statute says it can do, and no more. That’s why the police (also part of the Executive branch at the state level) can pull you over for speeding, but can’t make up a law on the spot and arrest you for your distasteful man-bun.

Here, the OSH Act permits OSHA to ensure “safe and healthful working conditions” by “enforcing occupational safety and health standards promulgated by the Secretary [of Labor]”. It can do so only if those standards are “reasonably necessary or appropriate to provide safe or healthful employment” and if the Rules and mandates they want everybody to abide by are “developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing”. In other words, “We the People of These United States” (hoi polloi like you and me) are supposed to have a say-so before any of these rules can be enforced.

And that was OSHA’s big “whoopsie” (this is a legal term). What they did instead was to say – “this vaccination mandate isn’t a ‘regulation’, which would require public notice and comment, it’s an ‘emergency temporary standard’, which doesn’t”. §655(c)(1).

“Ah, but not so fast”, says the Supreme Court, “it’s only an ‘emergency temporary standard’ if: (1) employees are in ‘grave danger’, and (2) the ETS is necessary to protect those employees from that ‘grave danger’”. This particular ETS is not. It is, as the Supreme Court held, a “blunt instrument”, and continued (with masterful alliteration!): “most lifeguards and linemen face the same regulations as do medics and meat-packers.” Speaking of which, the “meat” of the Court’s opinion is probably:

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

So, for the folks at OSHA, it’s back to the drawing board; for private employers and federal contractors (whose own ETS is still presently “on hold”), you’re left on your own to decide what’s best for your work force. For facilities that receive Medicare and Medicaid, you’re still stuck with your own ETS, but that is a story for a different day.