Under well-established law, the Biden administration’s vaccination mandates are clearly legal. But the politicization of the pandemic and vaccines makes it doubtful whether the Supreme Court will uphold them. Cases involving two regulations that impose vaccination requirements on workers will go before the court on Friday.
One rule calls for employers with more than 100 workers to require vaccinations or weekly COVID-19 tests of their employees. The Occupational Safety and Health Administration created the workplace mandate as an emergency and temporary fix, which can be adopted when “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”
On Dec. 17, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, ruled in favor of the Biden administration and upheld the rule. The court explained that given “OSHA’s clear and exercised authority to regulate viruses,” the agency “necessarily has the authority to regulate infectious diseases that are not unique to the workplace.” In addition, the court said OSHA demonstrated “the pervasive danger” that COVID-19 poses in workplaces.
This is clearly correct. As the 6th Circuit observed, more than 800,000 Americans have died of COVID, and its workplace presence is a serious risk to employees.
The other regulation before the Supreme Court was adopted by the Centers for Medicare & Medicaid Services. It requires that all healthcare workers at facilities that participate in the Medicare and Medicaid programs be fully vaccinated against COVID-19, unless they’re eligible for a medical or religious exemption. Twenty-six states, all led by Republican officials, brought lawsuits challenging this rule. Two federal appellate courts deemed the rule invalid, while one federal court of appeals upheld it.
This second rule should be upheld as well. As the U.S. 11th Circuit Court of Appeals, which ruled 2 to 1 in favor of the Biden administration, said: “Healthcare workers have long been required to obtain inoculations for infectious diseases,” such as measles, rubella and mumps, because vaccination is a “common-sense measure designed to prevent healthcare workers, whose job it is to improve patients’ health, from making them sicker.” The federal government can always set conditions on entities receiving federal funds, as it has done with the vaccination mandate for Medicare and Medicaid recipients.
The Supreme Court was asked to issue emergency orders in these cases. Without waiting for a full briefing on those requests, however, the justices took the very unusual step of granting review on both regulations and scheduled the cases for expedited oral arguments. The issues before the court are likely to be primarily about the statutory authority of OSHA and the Centers for Medicare & Medicaid Services to issue the regulations, rather than the constitutionality of the rules.
These should be easy cases, especially for the conservative justices, who profess that statutes should be interpreted solely based on their plain language. The laws in question give federal agencies the authority to adopt these rules. Firmly established law also requires judicial deference to agency decisions, which certainly should mean deference when government takes emergency action to protect public health in a pandemic.
But if I were a betting person, I’d wager against the Biden administration. In the lower courts, the judges almost always split along partisan lines in these cases. Judges appointed by Democratic presidents voted to uphold the regulations, and those appointed by Republican presidents voted to strike them down.
The hope must be that the Supreme Court will transcend COVID politics and simply follow the clear law to uphold the Biden administration’s vaccination mandates. What a wonderful surprise that would be — to help protect the health of many people and limit the spread of a devastating communicable disease.
Erwin Chemerinsky is dean of the UC Berkeley School of Law. ©2022 Los Angeles Times. Distributed by Tribune Content Agency.