Biden's vaccine mandate: Expert would be 'surprised' to see legal challenges prevail

[Yo_Mama_Been_Loggin]

President Joe Biden's upcoming mandate that most U.S. workers either get vaccinated against COVID-19 or get tested weekly will most certainly face legal pushback. But labor and employment lawyers say those challenging the standard could have a tough time winning their cases.

“Inevitably, there will be ready plaintiffs to challenge this,” Rutgers University employment law professor Stacy Hawkins said about Biden’s announcement Thursday directing the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to adopt the new regulations for private sector U.S. employers with more than 100 workers.

The new, yet-to-be-seen rule, called an emergency temporary standard, would apply to approximately 100 million U.S. workers and about two-thirds of U.S. employees, according to the White House. Federal employers and contractors would be required to get vaccinated, with no testing option alternative.

While company executives have widely embraced the new directive, and already rolled out their own vaccination requirements, some Republican governors and the Republican National Committee have warned the Biden administration to expect a fight. Georgia’s Republican governor, Brian Kemp, and South Dakota’s Republican governor, Kristi Noem, have both vowed to combat the new rule.

https://finance.yahoo.com/news/bidens-vaccine-mandate-legal-challenges-215842506.html

[ColinC]

1. If this were the first pandemic, we would be screwed

While the precedent is clear, it is also clear this court may be willing to go against a hundred years of precedent anyways.

[FBaggins]

3. The bad news is that the precedent IS clear...

... but tilts heavily toward tossing the policy.

[ColinC]

4. My understanding is that precedent shows that the first amendment does not apply to vaccine mandates

Since like, 1908

[FBaggins]

5. The precedent you're referring to is Jacobson v. Massachusetts (in 1905)

It would indeed defeat a claim that the first amendment gave anyone a federal right to not be vaccinated.

The problem is... that isn't the issue with a federal vaccine mandate. The question is whether the federal government has the power to create such a requirement in the first place.

Jacobson said that the state of Massachusetts did have the authority to create a vaccine mandate - but it was specifically because the state has "police powers".

It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine

The problem in this case is that the federal government does not have police powers. The constitution reserves those to the states under the tenth amendment.

[ColinC]

6. Thanks. Right now though the vaccine mandates are only as employer requirements

Not a legal requirement. Where I think employment law is where the much stronger precedent would lie.

[FBaggins]

2. I wouldn't call an employment law professor an "expert" on this issue

Frankly, I'd be surprised if the challenges fail.

Surely the professor had to take a con law class at some point? Usually the very first example to the question "What on earth does the 10th amendment even refer to?" is the lack of police powers for the federal government. It's why the military can't act as law enforcement within the states. States do have police powers - and that's why they can mandate vaccinations or masks or testing. But the federal government can't. That's also why (throughout the pandemic) experts on both sides (including the president, speaker of the House, Dr. Fauci, etc.) have all said that they can't mandate the vaccine.

Using OSHA is a clever strategy that should help in getting millions of people vaccinated before it is eventually overturned. But overturned it will be. Think of it like the CDC eviction strategy. The President knew that he lacked the power to do it... and knew that it would be thrown out in court pretty quickly. He just also knew that "pretty quickly" would still take some time and (during that time) people would avoid eviction.

It would be interesting to see what the courts would do if Congress delegated a similar power to the President using Commerce Clause language. It would spoil this year's moot court topic... but it would be interesting.

[ColinC]

7. The mandates are in the form of employment requirements, I believe

Which makes knowing the precedent in this regard in employment cases relevant.

[FBaggins]

8. As I said... that helps a little bit... but not much

Private employers have no significant constraints on health requirements for their employees. And the federal government, to the extent they employ millions of people, can also act there.

But they can't get around a lack of police powers by hiding the mandate in employment law. The same constitutional concern applies. It helps that it isn't really a vaccine mandate (vaccination is merely an option to get around a testing mandate)... but they probably can't create a mandatory testing scheme either. That too would involve police powers.

OSHA theoretically has the power to set workplace safety requirements, but the ones that have been upheld have always been safety risks that are related to the workplace itself... not generic public health risks. As an example - they could make a rule forbidding high heels in some manufacturing settings. But the president couldn't see a rash of high-heel accidents occurring around the country and decide to use OSHA to cut down on high heels for all employers.

There are thousands of vaccine requirements around the country. But they always come under state authority unless you're entering or leaving the US.

[ColinC]

9. You are right

But I do think firing somebody in itself is a pretty substantial police power fwiw


On edit: for, as you said "a little bit" :/


It'll get more people vaccinated until it doesn't. And unfortunately "till it doesn't" will come a lot sooner than we like

[CaptainTruth]

10. OSHA has already issued 300+ fines totalling over $4 million for COVID-related workplace hazards.

They've been doing it for months. OSHA's authority to impose requirements that mitigate workplace hazards is well established, & thus far none of their COVID-related enforcement actions has been struck down in court.

Take a look at the Dept of Labor news releases related to COVID:

[link:https://www.osha.gov/news/newsreleases/search?title_body=COVID&field_press_date_from_nrsearch=&field_press_date_to_nrsearch=|]

[FBaggins]

11. Take a closer look at the list

They're essentially all healthcare facilities. Obviously, protection against infectious disease is "related to the workplace itself".

Their communications to date to employers in general have been "guidance" and "suggestions" and contain "not a standard or regulation, and it creates no new legal obligations"