Regardless of whether you agree with President Biden’s new testing/vaccination policy for private employers with more than 100 employees, the Administration’s new approach to protect public health does present notable federalism and separation of powers issues under the Constitution. Briefly, the Administration will be requiring private employers to test all their employees for COVID-19 every week except for those employees who can prove vaccination. Does such a requirement pass Constitutional muster?
GOVERNMENT CAN IMPOSE PUBLIC HEALTH MANDATES.
As an initial matter, government generally can require vaccines. Hoary Supreme Court precedent provides the common-sense guidance that continues to govern today. Bottom line, an individual’s freedom cannot be absolute in a democratic society and the state has the power to issue impositions “as the safety of the general public may demand.” Jacobson v. Massachusetts, 197 U.S. 11 (1905). That includes vaccine mandates. Of course, the state’s power is limited by what is truly necessary and any legal imposition must pass a balancing test that weighs the individual’s liberty interest on the one hand against the exigencies of public health on the other. That said, established precedent provides that the state may in the context of a public health emergency require vaccinations to combat the spread of disease.
THE POLICE POWER TO PROTECT PUBLIC HEALTH RESIDES IN THE STATES, NOT THE FEDERAL GOVERNMENT.
We live in a federalist system where different governments hold different powers. The Court in Jacobson held that the states can require vaccines by exercising their police powers reserved for them under the Constitution. The federal government only has limited, delegated powers under the Constitution which do not include the general police powers left to the states. While the federal government can make work place safety rules as part of its power to regulate interstate commerce or potentially withhold federal funds to incentivize vaccinations through use of its spending power, the federal government does not have the Constitutional authority to impose general health mandates on the population.
THE FEDERAL GOVERNMENT HAS LIMITED OPTIONS AVAILABLE FOR ASSERTING VACCINATION POLICIES.
How will the Biden mandate hold up under this system?
Not a “Vaccine Mandate”: Regardless of how the media has reported the policy, the Administration’s anticipated rule will not constitute a federal vaccine mandate. It will be a testing mandate for large employers with a vaccination opt-out. With this device, the Administration appears intent to avoid the complications surrounding the federal government’s limited authority or lack thereof to order mass vaccination.
The question remains: Can they do that?
Congress and the Commerce Clause: Given the anticipated limited scope of the proposed mandate, it would likely fall within the federal government’s delegated authority to regulate interstate commerce. The Commerce Clause in the Constitution provides Congress the power to regulate activities that have a substantial effect on interstate commerce. Even intrastate activity may be regulated by Congress if the activity is economic and if there is a conceivable, rational basis that the activity at issue, in the aggregate, substantially affects interstate commerce. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding federal regulation of intrastate cultivation of marijuana because it was part of a comprehensive federal program to combat interstate traffic in illicit drugs). Thus, an Act imposing a testing mandate with a vaccine opt-out would likely pass scrutiny under the Commerce Clause if tailored to industries or employers likely to affect interstate commerce.
Congress and the Spending Clause: It is also possible the Administration may seek to implement the testing and vaccine opt-out mandate through the Spending Clause. Congress can withhold federal spending as a threat to recalcitrant states resisting the proposed testing and vaccine opt-out mandate, so long as the conditions Congress seeks to impose are related to the spending program at issue and not “unduly coercive”. See South Dakota v. Dole, 483 U.S. 203 (1987) (upholding federal law withholding 5% of federal highway funds otherwise allocable to states that do not raise the drinking age to 21). Thus, an Act incentivizing states to impose a testing and vaccine opt-out mandate under threat of withholding federal funds for health and human services would likely survive scrutiny if relevant to the spending program and not “overly coercive”. The path taken by the federal government to impose the 21 year drinking age provides a road map for this approach.
Notably, the President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Kendall v. United States, 37 U.S. 524 (1838). This power can only be wielded by Congress.
Executive Rule Making Power: The Administration may opt to avoid Congress altogether and impose the proposed testing and vaccination opt-out mandate through use of its regulatory power. More than most people realize, much of the rule making that must be done to implement the various statutory schemes enacted by Congress has been delegated by Congress to the various administrative agencies within the Executive branch. The Constitution permits such delegation so long as Congress provides an “intelligible standard” for the Executive branch to follow. See Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
The Occupational Safety and Health Act (“OSHA”) in particular empowers the Secretary of Labor to “by rule promulgate as an occupational safety or health standard any national consensus standard, and any established Federal standard” and that “[i]n the event of conflict among any such standards, the Secretary shall promulgate the standard which assures the greatest protection of the safety or health of the affected employees.” OSH Act, Section 6(a).
For the Executive branch to make rules with the force of law, however, the Administration must follow a formal, rule making process under the Administrative Procedures Act, which involves research, public notice, and public comment periods. Without such notice and opportunity for the public to be heard, the Administration’s pronouncements do not enjoy the status of a Regulation with the force of law.
If the Administration conducts the full rule making process, complete with research, notice and public comment, then its proposed testing and vaccination opt-out mandate would likely gain the force of law in the form of a Regulation. Congress has delegated this power to the Executive under OSHA and the limited scope of the mandate would likely fall within the “intelligible standard” set forth under the statute to protect the health and safety of employees.
Judicial Deference to Executive Interpretation: The Administration may choose not to follow a formal rule making process to implement its proposed testing and vaccine opt-out mandate. The Department of Labor (“DOL”) has already imposed requirements upon employers in the form of “Guidance” purporting to advise employers about how to meet the proper standard of care to maintain a safe work environment under OSHA. This is true in the area of COVID-19 response as well as in other areas concerning workplace safety. Employers have been given notice that if they fail to follow the DOL’s Guidance, they will be disciplined by the DOL and, if necessary, pursued in federal court.
The DOL’s interpretation of its own existing Regulations enjoys a substantial level of deference from the federal courts. As a general rule, an agency’s interpretation of its own ambiguous regulation is controlling unless “plainly erroneous or inconsistent with the regulation.” Cope v. Let’s Eat Out, 354 F. Supp. 3d 976, 986, (2019). This principle was established under Auer v. Robbins, 519 U.S. 452, 461 (1997). Such deference, known as “Auer deference”, is not absolute and is in fact “unwarranted when there is reason to suspect that the agency’s interpretation `does not reflect the agency’s fair and considered judgment on the matter in question.'” To be worthy of “Auer deference”, an agency’s interpretation must not result in “unfair surprise”. Courts have explained that agencies should provide “fair warning” of the conduct a Regulation prohibits or requires.
Even if “Auer deference” is not warranted, the Court may alternatively afford “Skidmore deference,” which is “deference proportional to the `thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade[.]'” Under this approach, an agency’s “interpretations contained in formats such as opinion letters are `entitled to respect,’ . . . but only to the extent that those interpretations have the `power to persuade.'” Cope, 354 F. Supp. 3d at 986.
In this way the Administration could simply rely on its own DOL’s Guidance to impose the proposed mandate rather than pursue the formal rule making and Regulation process. The federal courts’ deference to such Guidance will depend on the scope of the anticipated Guidance and the strength of the reasoning for it. If the Guidance appears to have been hastily developed or if it is inconsistent with prior guidance or rules, then it may not gain the benefit of judicial deference. If, however, the Guidance is supported by record evidence, logical reasoning, and fair notice, and is shown to be necessary in the context of a spreading pandemic, and is shown to be consistent with prior guidance and rules, then the federal courts will likely grant deference to the DOL’s new Guidance.
Executive Orders: The President may issue executive orders to direct subordinate officers, including those in the DOL, and they can have the force of law depending on their basis and scope. The Supreme Court provided substantial guidance for determining the validity of such presidential actions in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952). Essentially, when the President acts consistent with Congressional authority granted to the Executive, whether express or implied, the President’s executive order should be upheld. Where Congress is silent on the matter, the President’s actions should still be upheld unless they invade the province of another branch of government. The President cannot, however, act against the express will of Congress. See Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (holding that the 9/11 military commission could not proceed because its rules of procedure violated federal law as well as the rules of war).
Arguably an executive order along the lines described by the President in his public comments would be consistent within the authority granted to the Executive branch under OSHA. That said, OSHA calls for standards to be imposed pursuant to a rule making process, which an executive order would avoid. See OSH Act at Section 6(a) and (b). Obviously, the enforceability of any executive order would depend on its basis and scope.
SO, NOW WHAT?
It remains to be seen whether and how the Biden mandate will be enforceable. Much will depend on what it says and how it is promulgated. Ultimately the Administration will need to resort to the federal courts to enforce its testing/vaccination policy. How will these policies fare under judicial scrutiny? The answer will depend on the legal mechanism used. While states enjoy broad powers to impose vaccine mandates when public health requires, the Administration will need to act more strategically with the limited powers granted to the federal government.
Notably, even those who argue vehemently against the mandate are nevertheless often pro-vaccine use. While employers are not currently required to impose a vaccine requirement, they clearly are permitted to do so under federal law. Agencies including the EEOC, OSHA and the CDC have provided substantial guidance on how to administer a vaccine requirement while respecting the civil rights of employees under Title VII and the ADA.
In addition, plaintiff lawyers may argue that the failure of a business to impose reasonable vaccine mandates on its employees could amount to a failure to meet the duty of care to customers and the public. Such a failure could lead to liability for negligence and damage awards in the event causation of harm can be proven.
There are many reasons to encourage vaccination amongst employees, regardless of how the Biden mandate fares. Employers concerned about the health and safety of their employees and their customers should pay close attention to the guidance offered by the CDC, OSHA, EEOC, and state public health agencies.