Minimaxing carries with it its own costs, and those costs might very well turnout to be greater than the costs of draconian coronavirus policy.
Last Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion reaffirming and explaining the basis of its stay of President Biden’s much-discussed vaccination mandate—or, more precisely, OSHA’s “emergency temporary standard” requiring employers with 100 or more employees to require vaccination or regular testing and masking of their workforces. As the mandate heads to the Sixth Circuit, all conscientious American citizens and all serious students of American politics—whatever they think about Biden’s policy—should read Judge Kurt D. Engelhardt’s opinion for the court. It’s only about twenty pages long, and it has much to teach us about the principles that govern law and politics in a constitutional republic such as ours, and especially about how these principles are being applied in our time. Here are several interesting and important takeaways.
1. Where there is an independent judiciary, logical inconsistencies will eventually catch up with you. Many armchair critics and vaccination mandate dissidents have noticed and mocked a logical flaw in the case for requiring vaccination. On the one hand, the government tells us that the COVID vaccines are effective. On the other hand, the government tells us that we should get vaccinated in order to protect others. It doesn’t seem to make sense. If the vaccines are effective, everybody who gets them is protected and is therefore not endangered by the people who choose not to get them.
Such inconsistencies can be ignored when you have political power and a compliant, supportive, and incurious media. But such contradictions have a tendency to become relevant when the controversy comes before a court. That is the case here. As Judge Engelhardt observes, the administration itself admits that most workers are vaccinated and therefore not at great risk from COVID-19. The other workers, it would seem, are at risk, if at all, not from workplace conditions but from their own decision not to get vaccinated. So how is an OSHA ETS an appropriate response to their needs?
Engelhardt notes another inconsistency. The policy claims to protect workers from danger. Why, then, does it only seek to protect workers at companies that have 100 or more employees? Don’t the workers at smaller companies deserve protection, too? The government has a response that might reasonably resolve this problem: bigger companies are better able to carry the costs of the vaccination mandate. That is, they can afford to administer it, and they can afford to lose the employees that will quit rather than comply. But, as Judge Engelhardt notes, that just raises another problem. Why are such considerations in play if OSHA is truly confronting an “emergency”?
2. What constitutes judicial activism is often a complicated matter. Although the law grants OSHA the authority to issue “emergency temporary standards” in certain circumstances, their use has been unusual and has not exactly been welcomed by courts in the past. The administration’s defenders will be tempted to complain that the Fifth Circuit has here engaged in irresponsible judicial activism, short-circuiting a policy that the nation’s elected officials believe is necessary for the common good. Maybe. But, as Judge Engelhardt’s opinion observes, OSHA has only issued ten ETSs in its fifty-year history, and half of those were struck down by the courts. Indeed, it is understandable that courts would approach such regulations cautiously: they impose new rules without the benefit of new legislation enacted by Congress. A court’s suspension of a certain policy, on the one hand, might well be judicial activism, if the policy represents the clear will of Congress—but then it might, on the other hand, be an act of judicial responsibility, if the suspension thwarts an executive who is pushing a delegation of authority further than Congress intended. The Fifth Circuit panel seems to believe that the latter is what is happening here.
3. When it comes to the rule of law, the Constitution is not everything. Ordinary Americans tend to think of these prominent political-legal clashes as necessarily involving the Constitution and judicial review in the sense of testing a statute against the nation’s fundamental law. This is often true, and it is true in this case as well. But it is not always true, and it is not the whole truth about this case. When an American presidential administration issues a rule claiming to bind American citizens, it is not enough that it refrains from directly violating some constitutional prohibition. It also has to be authorized by some statute that has been duly enacted by Congress. This is elementary American civics: the president executes the law and does not make it.
The Fifth Circuit opinion raises some interesting questions about whether OSHA’s COVID vaccination mandate is really authorized by the language of the statute the government has invoked to justify the emergency temporary standard. The law speaks of protecting workers from “toxic” “agents” and “substances.” It is not obvious, to say the least, that in choosing such terms Congress contemplated something like a virus. Moreover, the point of the statute is to protect workers from dangers in the workplace—yet the government cannot demonstrate that COVID is present in all the workplaces it is trying to regulate.
4. With the rule of law, what goes around comes around. Just a few years ago, many Americans thought it was just nifty to take the Trump administration to court and challenge its actions on the basis of things Donald Trump had said apart from the actions themselves. Thus, many commentators, politicians, and litigants held that the Trump administration’s travel ban imposed on several terrorism-prone nations should be declared unconstitutional because it was in fact a “Muslim ban.” On this view, Trump’s loose and reckless remarks on the stump during the campaign could be used against the administration later, even though the administration had taken care to frame the ban much more narrowly and in a way that was consistent with the law authorizing such executive action. Here, the policy’s constitutional infirmity could be derived not from the words of the policy itself, but instead from the subjective intentions of the president who had set it into motion.
Is this a good way to exercise judicial power? I have criticized such quests for the subjective intentions of policy-makers, because it seems to me that this kind of judging departs from the more modest approach that characterized our courts in an earlier and more sober time. But if American courts are going to embrace this kind of judging, then it must, as a matter of principle, be applied to both Republican and Democratic administrations. That is what is happening in this case. In his opinion, Judge Engelhardt takes notice of the fact that Ron Klain, President Biden’s Chief of Staff, re-tweeted a journalist’s remark that OSHA’s ETS was “the ultimate work-around for the Federal government to require vaccinations.” Klain thus seemed to be signaling the ETS is a way for the administration to evade the constitutional limits on the power of the federal government, which does not include an authority to impose vaccination on the population at large. The Fifth Circuit is taking Klain at his word (or at his Tweet) and judging the administration’s policy accordingly. This, in turn, brings us to a final lesson of the court’s opinion.
5. NFIB v. Sebelius has legs. The Fifth Circuit thinks it likely that the OSHA ETS has exceeded the federal government’s power because the Fifth Circuit’s thinking is guided—as it must be—by the Supreme Court’s ruling in the “Obamacare” case, NFIB v. Sebelius, from 2012. The Court’s ruling in that case famously disappointed conservatives because Chief Justice Roberts joined the liberal wing of the Court in upholding the “individual mandate” (to purchase health insurance) as a legitimate exercise of the federal government’s taxing power. That disappointment aside, the Court in that case did lay down a still relevant limit to the exercise of the federal government’s commerce power. Roberts and the four conservatives on the Court held that the federal government could not, as an exercise of the commerce power, require Americans to purchase health insurance. After all, the majority reasoned, the decision not to take out a health insurance policy is inactivity and not the kind of economic activity that the commerce power covers. If the commerce power can be invoked to regulate such non-actions, then the authority of the federal government over American society is unlimited by the Constitution’s enumeration of powers, which is clearly not what the Constitution intends.
The Fifth Circuit applies this line of reasoning to the vaccination mandate that President Biden has tried to impose through OSHA. The decision not to get vaccinated is certainly not economic activity. It is rather, Judge Engelhardt says, “non-economic inactivity”—and thus not within the scope of Congress’s authority to regulate commerce among the states. And the commerce power is the only plausible basis on which the federal government might rest any authority to require the general run of Americans to get vaccinated. Here the Fifth Circuit reminds us of something important that has been overlooked by many commentators and politicians throughout the entire COVID-19 pandemic: the federal government has no direct authority over public health. Rather, care of the public health belongs to the “police powers” of the state governments, their reserved powers to legislate in the interest of public morals, health, safety, and welfare. Hence the questionable constitutionality of a federal vaccination mandate.
Whatever happens at the Sixth Circuit and beyond, Judge Engelhardt has helped us situate the OSHA mandate in the broader context of constitutional self-government.