With the national coronavirus vaccination effort stalling amid hesitancy among roughly one-third of Americans, President Joe Biden has announced tougher measures aimed at getting more shots in arms and the delta variant under control.
On Sept. 9, Biden set out three major steps to tighten vaccination requirements:
- A mandate for federal employees to be vaccinated, with limited exceptions and no fallback option of undergoing regular testing. A separate mandate would cover federal contractors.
- A vaccination mandate for employees at health care facilities that receive Medicare or Medicaid funding.
- A requirement that private businesses with more than 100 employees require either vaccination or weekly testing. This could affect 80 million workers, according to the White House.
“This is a pandemic of the unvaccinated,” Biden said. “And it’s caused by the fact that despite America having an unprecedented and successful vaccination program, despite the fact that for almost five months free vaccines have been available in 80,000 different locations, we still have nearly 80 million Americans who have failed to get the shot.”
Some corporate groups such as the Business Roundtable offered their support, but as with so much surrounding public health policy related to the pandemic, Biden’s announcement drew immediate fire from Republicans.
“I will pursue every legal option available to the state of Georgia to stop this blatantly unlawful overreach by the Biden administration,” the state’s Republican Gov. Brian Kemp tweeted.
“This is an unprecedented assumption of federal mandate authority that really disrupts and divides the country,” added Arkansas’ Republican governor, Asa Hutchinson, on NBC’s “Meet the Press.”
So will Biden’s critics be able to torpedo his new mandates in court? It’s impossible to predict how legal battles will play out, of course. But legal experts PolitiFact interviewed made two major points.
One is that there is strong legal precedent supporting Biden’s moves, especially for the policies affecting federal workers and health care facilities. But at the same time, various rulings in recent years have chipped away at these precedents, and the Biden administration is likely to face credible challenges in court against at least some of these policies.
Biden’s new policies are carefully crafted and “do have a statutory basis,” said Lindsay F. Wiley, director of the health law and policy program at American University. But, she added, “there will almost certainly be legal challenges to these measures once they’re finalized, and it’s possible that judges who are sympathetic to the challengers will find a way to enjoin the vaccination requirements.”
The federal employee mandate
The provision to require vaccination for federal employees would not allow regular testing as an alternative, although it is expected to include narrow exceptions for people with certain disabilities or religious objections. The related requirements for government contractors are expected to be similar.
Ilya Somin, a George Mason University law professor with libertarian leanings, wrote that the federal worker mandate is the “most defensible” part of Biden’s three-prong plan.
“Acting as an employer, the federal government, like other employers, can routinely impose all sorts of conditions that would be illegal if imposed on the general public,” Somin wrote.
Other legal analysts agreed. “The federal government, in its capacity as an employer, can certainly impose reasonable conditions of employment, and a COVID vaccination requirement, with certain caveats, is entirely reasonable,” said Wendy Mariner, an emeritus professor of health law at Boston University.
One wild card: The new policy may cause friction with employee unions, which might push for requirements to be negotiated through collective bargaining, Mariner said.
The mandate on health facilities that accept federal funding
The provision on hospitals, which also excludes a testing fallback option, would affect an estimated 50,000 facilities that accept reimbursements from Medicare or Medicaid, including hospitals, dialysis clinics, outpatient surgical facilities, and home health care agencies. (Nursing homes were already covered by a previous order.)
The authority for this mandate stems from the Center for Medicare and Medicaid Services’ ability to set standards, including safety standards, for the health care facilities where it pays for services.
One possible vulnerability to this provision could come from the Supreme Court decision in NFIB v. Sebelius, which generally upheld the Affordable Care Act but struck down its provision that enabled the federal government to pull all Medicaid funding from states that did not comply with the law. The court majority considered this “coercive.”
However, Somin suggests that Biden’s requirements are more carefully targeted and could avoid this problem. The penalties under Biden’s provisions are targeted at individual health care facilities, rather all Medicaid-serving hospitals in a given state.
The mandates on large businesses
The mechanism for enacting the business mandates relies on powers granted to the Occupational Safety and Health Administration. And of the three new policies, it could face the most resistance in court.
Biden tasked the agency with producing an “emergency temporary standard” that sidesteps the normal rulemaking process; it would be in force for six months. (Going through the normal rulemaking process typically takes about eight years.)
Under the agency’s authority to establish an emergency rule, it would have to demonstrate that “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 the emergency standard “is necessary to protect employees from such danger.”
These emergency rules have “rarely been used by the agency, but that’s by design — it’s intended for emergency situations and imposes requirements of limited duration,” Wiley said.
When emergency orders have faced legal challenges, courts have been open to blocking or paring them back. And legal analysts said they see several avenues of attack, beyond traditional arguments like the lack of a true emergency. (In this case, preventing the spread of the coronavirus in workplaces arguably “provides the strongest justification for use of an emergency temporary standard that OSHA’s seen in its 50-plus year history,” Wiley said.)
One avenue could be that a virus might not qualify as a “substance or agent,” a term that is typically understood as a manmade chemical, Somin wrote. Another argument could be about whether the emergency rule is “necessary” to meet the virus’ challenge.
Somin added that characterizing the coronavirus as a “grave danger” — which a 1985 circuit court opinion said OSHA should be able to determine without being second-guessed in court — could spook jurists because it could open the door to “near-boundless authority” to issue similar emergency regulations “on almost any workplace practice.”
What lines did Biden decide not to cross?
The big policy that Biden has so far declined to impose is a national vaccination mandate. There’s a reason: Legal experts said that doing so would have been pretty clearly unconstitutional.
This is a “bright line,” said Lawrence O. Gostin, faculty director of Georgetown University Law Center’s O’Neill Institute for National and Global Health Law. “States can mandate vaccines for the general population. The federal government cannot.”
Similarly, a presidential order for states to require vaccinations on their own would likely have been found unconstitutional, said Wendy E. Parmet, director of the Center for Health Policy and Law and Northeastern University.
There’s another policy that Biden likely could have invoked, but didn’t, Gostin said: vaccine requirements for people traveling between states or internationally on planes or trains.
The bigger picture: Weighing public health against private liberties
So far, we’ve looked at the legality of the specific mechanisms for each of Biden’s three major policy changes. But lurking behind each of them is a broader issue: whether the courts will uphold the larger principle that the government can require vaccinations for most people without allowing broad opt-out provisions.
The longstanding precedent on this issue comes from the 1905 Supreme Court case Jacobson v. Massachusetts. The case upheld the power of states and other government entities to enforce compulsory vaccinations in the interest of public health. “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members,” Justice John Marshall Harlan wrote in the majority opinion in the case.
Historically, this decision has given strong support for state-mandated vaccination policies. When faced with legal challenges, “state courts and lower federal courts have consistently sided with the government,” typically by relying on the Jacobson case, Wiley and University of Texas law professor Steve Vladeck wrote.
The question is whether today’s courts, filled with more conservative judges, will give the 1905 case the same deference their predecessors did.
For instance, just weeks before Biden announced the new requirements, the Supreme Court, in a 6-3 decision in the case Alabama Association of Realtors v. HHS, ruled that an executive branch agency — the Centers for Disease Control and Prevention — had overstepped its legal authority when it extended a moratorium on evictions amid the pandemic without specific congressional authorization.
“It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts,” the majority opinion said, adding, “It is indisputable that the public has a strong interest in combating the spread of the Covid-19 Delta variant. But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
Other recent moves by the Supreme Court have suggested that future vaccination policies will need to have religious opt-outs, bolstering existing guidance from the longstanding Religious Freedom Restoration Act. The 2020 case Roman Catholic Diocese of Brooklyn v. Cuomo and the 2021 case Tandon v. Newsom both pared back restrictions on religious worship during the pandemic.
Such cases “have given greater weight to religious objections under the First Amendment free exercise clause,” Mariner said. She said some justices have indicated that they’d accept someone’s ‘sincere belief’ that their religion requires or forbids something, as opposed to verifiable religious doctrine. If this standard is enacted, that could potentially create a major opening for those who seek to avoid mandatory vaccinations.
Religious liberty cases are among “the most likely to gain traction” in the current environment, Parmet said.
Biden’s executive order on federal workers includes the phrase, “with exceptions only as required by law,” which could be read to cover religious exemptions, potentially bolstering its ability to be upheld.
All in all, despite the long record of judicial support for mandatory vaccinations, Gostin said, “there will be legal challenges, and because the judiciary is so conservative, we can’t be sure of the outcome.”
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