About three weeks ago, on November 5, the federal Occupational Safety and Health Administration (OSHA), invoking its statutory authority, issued an Emergency Temporary Standard (ETS) that provides that every U.S. employer with 100 or more employees must “develop, implement, and enforce a mandatory COVID-19 vaccination policy” for workers, and require any workers who remain unvaccinated to undergo weekly testing and wear a face mask. A variety of plaintiffs, including employers, individuals, and some states, have brought legal challenges to the ETS in federal courts around the country. These lawsuits argue, in essence, that Congress has not given OSHA authority to issue regulations to protect workers against the virus as a matter of workplace safety, and that Congress could not do so because it lacks constitutional power to mandate mass vaccination, testing and mask-wearing in this manner. Pursuant to the procedures governing multidistrict litigation, these lawsuits have now been consolidated, by lottery, in the U.S. Court of Appeals for the Sixth Circuit, whose ultimate decision (subject, of course, to U.S. Supreme Court review) will apply nationwide.
In this column, we set aside (in part because we are not experts on the OSHA statute) the question of whether OSHA’s statutory authority supports the ETS it has issued. Instead, we address (because we are experts on the U.S. Constitution) solely the question of whether Congress has federal power to regulate employers and employees to ensure that workers in large businesses are vaccinated for COVID-19 or are regularly tested and masked. We think that Congress clearly does have such a power under Article I of the Constitution.
Days prior to the consolidation of the cases in the Sixth Circuit, the Fifth Circuit, in a case that had been filed before it (a case that now moves to the Sixth Circuit) stayed enforcement of OSHA’s ETS, pending review of an application by challengers for a permanent injunction. The Fifth Circuit panel took the view that, for a variety of reasons, OSHA had probably exceeded its statutory powers in issuing the ETS. Although the panel’s bottom line was seemingly statutory, en route to this bottom line the court also engaged in a constitutional analysis and asserted that the Commerce Clause likely could not support the vaccine requirement. The panel wrote:
[T]he Mandate raises serious constitutional concerns that either make it more likely that the petitioners will succeed on the merits, or at least counsel against adopting OSHA’s broad reading of . . . [its authority] as a matter of statutory interpretation. . . . [T]he Mandate likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power. A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity. Cf. NFIB v. Sebelius, 567 U.S. 519, 522 (2012) (Roberts, C.J., concurring); see also id. at 652–53 (Scalia, J., dissenting). And to mandate that a person receive a vaccine or undergo testing falls squarely within the States’ police power. Zucht v. King, 260 U.S. 174, 176 (1922) (noting that precedent had long “settled that it is within the police power of a state to provide for compulsory vaccination”); Jacobson v. Massachusetts, 197 U.S. 11, 25–26 (1905) (similar). The Mandate, however, commandeers U.S. employers to compel millions of employees to receive a COVID-19 vaccine or bear the burden of weekly testing. 86 Fed. Reg. 61,402, 61,407, 61,437, 61,552. The Commerce Clause power may be expansive, but it does not grant Congress the power to regulate noneconomic inactivity traditionally within the States’ police power. See Sebelius, 567 U.S. at 554 (Roberts, C.J., concurring) (“People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.”); see also Bond v. United States, 572 U.S. 844, 854 (2014) (“The States have broad authority to enact legislation for the public good—what we have often called a ‘police power.’ . . . The Federal Government, by contrast, has no such authority. . . .” (citations omitted)). Indeed, the courts “always have rejected readings of the Commerce Clause . . . that would permit Congress to exercise a police power.” United States v. Lopez, 514 U.S. 549, 584 (1995) (Thomas, J., concurring). In sum, the Mandate would far exceed current constitutional authority.
Some, like Linda Greenhouse of the New York Times, have criticized the Fifth Circuit for weighing in and deciding whether to issue a stay at all, given the impending multidistrict litigation consolidation process. Our beef with the Fifth Circuit is more fundamental; if it was going to weigh in, at least it could have done so in a way that helped frame the right questions. Instead, the Fifth Circuit’s analysis of the Commerce Clause is so obviously (indeed embarrassingly) incorrect that its musings distract from rather than assist in the ultimate resolution of these disputes. There are almost too many mistakes crowded into the relatively short passage excerpted above to catalogue, but we will focus on three.
First, let’s consider the court’s assertion that the ETS is a regulation of noneconomic inactivity—similar to the decision to forego health insurance at issue in Sebelius (in which the Court upheld the Obamacare so-called insurance mandate as a tax but in which five members of the Court in separate opinions expressed the view that the mandate was beyond the scope of Congress’s powers under the Commerce Clause). The ETS is a regulation of employers with more than 100 employees. Those employers are unquestionably involved, indeed engaged, in interstate commerce—hiring and employing are (commercial) activities, not inactivity—and these employers’ activities are easily subject to Congress’s reach under the Commerce Clause. Congress can readily tell these employers that the workers they hire must meet any number of requirements of health and safety. It can tell employers that only vaccinated (or regularly tested) individuals are permitted to work just as it can impose requirements of education or training in various industries and settings.
Besides its clear power to regulate large employers, Congress could also easily require individuals themselves who want to work in interstate commerce to be vaccinated or tested. The Fifth Circuit asserts that “[a] person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity.” Perhaps. But the deed of affirmatively working alongside dozens or hundreds of other employees at a workplace is of course both active and economic, and one that Congress can regulate. The choice not to wash one’s hands after using the bathroom at home may involve noneconomic inactivity (of a disgusting kind, we might add). But nobody doubts that Congress lacks authority to require food workers to wash their hands at work (or to require employers ensure that such employees wash their hands). The Fifth Circuit’s facile analysis apparently seems not to appreciate the key distinction between failing to do something (in the abstract) and failing to do something on the job at a crowded workplace.
Second, examination of the Fifth Circuit’s invocation of state police powers reveals that the court fares no better here. The court’s reliance on Zucht and Jacobson for the proposition that the Constitution gives states and not Congress authority to require a vaccine program is misplaced. Those cases involved Fourteenth Amendment challenges to state vaccination requirements—not federalism disputes about whether states or the federal government can regulate. Relatedly, the Fifth Circuit’s apparent starting point—that if states can regulate under their police powers, then Congress cannot regulate—defies basic principles of constitutional interpretation and history. Indeed, in the early nineteenth century the Supreme Court briefly considered the notion that federal and state regulatory powers over economic matters are exclusive, such that the presence of federal power means the absence of state power (which would also mean that the permissible exercise of state power proves the lack of federal authority). But by 1829 (in Willson v. Blackbird Creek Marsh Company), the Court emphatically rejected that notion. For this basic reason, that a state might be regulating in some area doesn’t itself tell us whether Congress can or cannot (if it chooses) regulate. Nor does the fact that Congress hasn’t regulated tell us whether it could. Education, for example, is a traditional area of state power in which the federal government largely stayed out for a long time, but because educational institutions are involved in interstate commerce, Congress need not leave (and in recent times has not left) regulation of such institutions entirely to the states. In short, the Fifth Circuit’s reasoning—that the presence of state authority suggests the absence of federal power—is a quintessential non sequitur.
And third, the Fifth Circuit seems to be troubled that ETS “commandeers U.S. employers.” Federal commandeering can be a problem, but only when state and local governments qua governments are the ones being commandeered. The federal government routinely “commandeers” employers and other actors who are not themselves exercising sovereign powers to ensure compliance with and enforcement of federal laws. Among other things, the federal government “commandeers” employers to verify that employees are eligible to work in the United States, to prevent sexual harassment in the workplace, to align retirement plans with federal requirements, and, of course, to implement federal workplace safety rules. The Fifth Circuit’s use of the term, “commandeering,” is seemingly meant to bring to mind the Supreme Court’s anti-commandeering cases (most recently, Murphy v. NCAA). But, again, those anti-commandeering cases involve the federal government conscripting state and local government legislators and executive officers. The ETS does not involve any such commandeering. Indeed, the ETS reflects the Court’s admonition that if the federal government is to regulate the private sector it must regulate private actors directly, not force state regulators to do federal bidding.
Perhaps OSHA lacks the power to issue the ETS. But if that is true, it is certainly for reasons other than the Fifth Circuit’s analysis of federal power. One hopes the Sixth Circuit judges and clerks are better readers and analysts of Supreme Court doctrine and more attentive to constitutional first principles.