Unpacking the Supreme Court’s Recent Decision Over Biden’s OSHA Vaccine Mandate

The Big Picture

Last Thursday, the Supreme Court (Court) issued its decision regarding the legality of President Biden’s Occupational Safety and Health Administration (OSHA) Employer Vaccine Mandate (mandate). The Court correctly held that the challengers were likely to succeed on the merits of their claim that OSHA’s mandate exceeded the agency’s statutory authority. As a result, the Court placed a stay on the mandate that will prevent OSHA from enforcing it.

While there is no doubt the opinion is a major blow to President Biden’s agenda, the opinion also shows a majority of the Court’s interest in preventing broad, far-reaching, and costly regulations on politically or economically significant regulations from the executive branch that are not clearly authorized by Congress. In administrative law speak, this doctrine is commonly known as the major questions doctrine. It also played an important role last summer when the Court held the Centers for Disease Control (CDC) exceeded its statutory authority when it imposed a nationwide eviction moratorium. See Alabama Association of Realtors v. HHS (2021).

However, in holding that OSHA had exceeded its statutory authority, the Court did not hold that OSHA’s mandate was unconstitutional. The Court did not hold that the mandate could not be justified under the Commerce Clause. It did not hold that the mandate violated the Due Process or Equal Protection Clause. In fact, arguments that the mandate was unconstitutional hardly made an appearance at oral argument, or in the briefs of the state of Ohio or the National Federation of Independent Business that argued the case.

The Details

• On November 5th, OSHA released its mandate under its emergency temporary standard authority found in the OSH Act. For employers with at least 100 employees, it requires those employees to be vaccinated or take a weekly COVID test at their own expense and wear a mask in the office. Employers must keep their employee’s vaccination status and test results on file. The penalty for a standard violation is $13,653, and $136,532 for willful violation.
• OSHA estimated its mandate would apply to 264,000 businesses and cover almost 85 million employees. Of those 85 million employees, 52.5 million of them are vaccinated while 31.7 million are not.
• The OSH Act allows OSHA to promulgate a regulation that has immediate legal effect if the Secretary of Labor finds “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger.” See 29 U.S.C. § 655(c)(1).
• After OSHA announced its mandate, it faced several legal challenges. These challenges asked courts for a stay to prohibit OSHA from enforcing its mandate while the legal challenges on the merits move forward. The U.S. Court of Appeals for the 5th Circuit originally granted a stay.
• Although lawsuits were brought in many circuit courts, all the challenges were moved into the U.S. Court of Appeals for the 6th Circuit under the Multicircuit Petition Statute. See 28 U.S.C. § 2112(a).
• Once all these lawsuits were consolidated into the 6th Circuit, the en banc (full) 6th Circuit voted not to hear the case. As a result, the case was moved to a 3-judge panel on the 6th Circuit that removed the 5th Circuit’s stay and allowed OSHA to enforce its mandate. After the stay was removed, many challengers asked the Court to reimpose the stay.
• OSHA began enforcement of every part of its mandate except for testing of unvaccinated employees on January 10th. It had planned enforcement on testing for unvaccinated individuals on February 9th. In response to the Court’s ruling, OSHA has suspended enforcement.
• In December 2020, President-elect Biden said he did not think vaccines should be mandatory. Last September, however, when announcing the OSHA mandate, President Biden said his “patience is wearing thin” with the unvaccinated.
• President Biden’s Chief of Staff Ron Klain re-tweeted an MSNBC anchor’s tweet that called OSHA’s mandate “the ultimate work-around” for the federal government to require vaccines.
• In response to OSHA’s mandate, FreedomWorks Foundation submitted a comment signed by 2,300 activists in strong opposition to the mandate.

The Court’s Opinion

The Court’s analysis is divided into two parts. First, the Court considered the broad scope of OSHA’s mandate. On its own terms, it applies to 84 million employees, it requires them to get a vaccine or face weekly testing at their own expense, and nothing like this had ever been required by OSHA in its history. Because these facts are both economically significant due to their high cost to the economy and politically significant because OSHA’s mandate is a “significant encroachment into the lives—and health—of a vast number of employees,” the Court held that the major questions doctrine applied.

Second, once the major questions doctrine applied, the question became whether the OSH Act “plainly authorized” the mandate. The Court then examined the text of the OSH Act giving no deference to OSHA’s interpretation. The Court concluded the mandate was not plainly authorized by the statute because OSHA is empowered to regulate occupational hazards, and in most workplaces COVID is not an occupational hazard. OSHA’s mandate functioned more like a broad public health measure, which OSHA cannot issue, rather than a workplace safety standard, which OSHA can issue.

The Administrative Procedure Act (APA) and Chevron deference

The Constitution does not create administrative agencies. Instead, as the majority noted on page 5, “[a]dministrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.” Along with the statutes that created the agencies, agencies also work under the confines of the APA. The APA and other statutes provide several ways for agencies to promulgate regulations to enforce statutes that Congress delegated to them.

But while the APA provides several mechanisms for agencies to enact regulations, it also gives challengers several ways to attack an agency’s action. As a threshold matter, the APA allows challenges to final agency action. See 5 U.S.C. § 704. Agency actions are final when they constitute the “consummation of the agency’s decision-making process” and impose “rights or obligations from which legal consequences will flow.” See Bennett v. Spear (1997). In other words, an agency’s action is final if the regulation has legally binding consequences. An agency’s internal guidance memo would not qualify while OSHA’s mandate does.

After establishing that the regulation constitutes final agency action, challengers can ask a court under the APA to “hold unlawful and set aside agency action” that is (A) arbitrary or capricious, (B) contrary to constitutional right, (C) in excess of statutory authority or (D) without observance of procedure required by law among other possible remedies. See 5 U.S.C. § 706(2)(A)-(D)). Each of these claims comes with a different legal standard developed by the Court. If a challenger succeeds on any of these claims, the regulation cannot be enforced against the challenger.

The issue that receives the most attention in administrative law is known as Chevron deference. It is traditionally invoked by the government when a challenger argues that the agency has exceeded its statutory authority. See Id. § 706(2)(C). Under this claim, a challenger argues the government’s regulation does not fit under the text of the statute. In response, the government asks the court to defer to its interpretation of the statute. At its core, Chevron deference is about statutory interpretation, not constitutional law. However, neither the Constitution nor the APA mandates Chevron deference. It is a Court-created doctrine.

A Chevron deference analysis has two steps. First, if the agency is acting under a statute Congress authorized it to enforce, the question is whether Congress has directly spoken to the question at issue. If the answer is yes, the plain meaning of the statute governs, and the agency receives no deference. If however the statute is silent or ambiguous on the question, the answer under step one is no. A reviewing court will then proceed to step two and ask whether the agency’s interpretation of the statute is permissible. See Chevron U.S.A., Inc. v. NRDC (1984). In other words, if the agency’s interpretation of the statute is reasonable, the court defers to the agency. Once this deference is established, a challenger’s claim that the agency has exceeded its statutory authority is often a very difficult battle.

The Major Questions Doctrine

While Chevron deference has been established for almost 40 years, the major questions doctrine is of newer vintage and has not been applied in a clear way. When the doctrine is applied, there is no Chevron deference analysis. The court performs its own statutory analysis, and the government has an exceedingly high bar to show that its interpretation of the statute is “plainly authorized.” Congress must be exceedingly clear that it has asked the agency to act this way. In a way, the major questions doctrine is the opposite of Chevron deference.

In previously describing the major questions doctrine, the Court has said “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” See Util. Air Regulatory Group v. EPA (2014) at page 19. In other words, the doctrine applies when an agency promulgates a regulation from an old statute, the type of regulation has never been pursued by the agency before, the regulation is costly for the economy, and the subject matter of the regulation is on a topic of economic or political significance. If a court determines these factors are met, its next step is to ask whether the agency’s action is “plainly authorized” by the statute. As stated above, this “plainly authorized” analysis is a high bar.

In the case over OSHA’s mandate, the major questions doctrine applied because even though the statute OSHA relied on 50 years old, OSHA had never implemented a nationwide vaccine or test mandate in its history; and the regulation was very costly to the economy because the 31 million unvaccinated employees would face expensive tests that they had to pay for, or they would quit because they did not want to bear the cost. Moreover, OSHA’s mandate came close to a nationwide vaccine mandate, a topic of obvious political significance. The Court then held that the government’s interpretation of the statute was not “plainly authorized” by Congress.

In the case over CDC’s Eviction Moratorium (see above), the major questions doctrine applied because the statute CDC relied on was almost 80 years old, the CDC had never instituted an eviction moratorium of any kind; and the regulation affected at least 80 percent of the country, including between 6 and 17 million tenants at risk of eviction. The Court then held the government’s interpretation of the statute was “unprecedented” and “[i]t strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

What Happens Next?

The case will now go back to the 6th Circuit, which will hear arguments on the full merits. The only question the Supreme Court resolved was whether to grant a stay to prohibit OSHA from enforcing its mandate while legal challenges to the mandate continue. However, it is unclear how the 6th Circuit could rule for OSHA on the merits. While a petition for a stay considers several factors, the most important factor is the challenger’s likelihood of success on the merits. Here, the Court held the challengers are likely to succeed on the merits. After OSHA likely loses in the 6th Circuit, it will petition the Court for review again.

Although the Court ruled against OSHA, it gave examples of what OSHA could regulate with respect to COVID. First, the Court said OSHA does have authority to regulate “occupation-specific risks related to COVID.” (See page 7). As examples, the Court pointed to regulating researchers who work with COVID or employees working in particularly crowded or cramped environments. But while those are examples of workplaces OSHA can regulate, the opinion does not say what form OSHA’s regulation can take. A vaccine mandate would seem unlikely because unlike wearing hard hats on the job, a vaccine cannot be taken off at the end of the workday. Perhaps OSHA might try a testing or mask mandate for certain industries.

Finally, as stated above, the Court’s holding did not rest on constitutional law. States, localities, and businesses are still free to enact vaccine mandates. For those seeking relief from these mandates, this opinion will be of no help. The opinion rests on federal administrative law and statutory interpretation principles, not constitutional law.