- - Tuesday, December 7, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America.

This has not been a good month for the Biden administration with respect to COVID-19. First, the new omicron variant has landed on our shores, and Moderna announced that its vaccine may not be as effective against this new variant. The Dow Jones Industrial Average and other markets have reacted accordingly.

Second, as of this week, more Americans have died from COVID-19 under the 10 months of the Biden administration, with both vaccines and effective therapeutics, than during the same 10-month stretch under the Trump administration without the vaccine and few therapeutics.  

Third, President Biden’s three-pronged attempt to compel Americans to get vaccinated — a Department of Labor rule aimed at workplaces, a Department of Health and Human Services rule aimed at certain providers who bill Medicare, and an executive order aimed at federal contractors — has been rebuffed by the courts in what has become a litigation feeding frenzy. 

These three sets of cases do not question the efficacy or safety of the COVID-19 vaccines. They are likely the safest vaccines ever produced, and more folks should voluntarily get vaccinated. Nor are the cases necessarily about individual liberties. State governments have, for more than 100 years, imposed vaccine mandates on their citizenry, especially children. 

Rather, the cases focus on whether the federal government (in contrast to the state governments) has the constitutional authority to impose the mandates, and if so, can that authority be exercised by the agencies through emergency rule making or by the president through an edict.

The health of our citizenry has traditionally been a matter exclusively within the purview of the states. Our earliest federal laws — from the 1790s — related to quarantines. They authorized federal authorities to assist the states in enforcing their health laws, but only when requested.

The actions of the early Congresses shine light on how our Founding Fathers envisioned the division of power between the states and the federal government. Our more recent laws, including Medicare and the Food, Drug, and Cosmetic Act, have been careful to pay heed to state authority in this area, especially with respect to the practice of medicine. Nevertheless, the recent vaccine mandate cases show that some still have difficulty seeing the line dividing state and federal authority.

First up was the Labor Department rule from the Occupational Health and Safety Administration, which seeks to require employers of 100 or more to mandate their employees be vaccinated or be tested weekly and wear masks while at work. The rule also requires employers to give employees a paid day off to recover from the side effects of the vaccine. The rule was issued on an “emergency” basis without notice and comment, thereby short-circuiting the normal rule-making process. 

Challenges to OSHA rules like this go directly to the federal courts of appeals. The states of Louisiana, Mississippi, South Carolina, Texas and Utah and numerous businesses that would be adversely affected by the rule immediately challenged it in the 5th Circuit, located in New Orleans. On Nov. 12, the court stayed the rule pending further judicial review, concluding, among other things, that “health agencies do not make housing policy, and occupational safety administrations do not make health policy …  In seeking to do so here, OSHA runs afoul of the statute from which it draws its power and, likely, violates the constitutional structure that safeguards our collective liberty.”  

Many other states and businesses also challenged the OSHA rule in various other appeals courts. In an odd twist, a panel of judges in the District of Columbia consolidated the many cases, including the one from the 5th Circuit, under the “lottery rule.” Under the law, when numerous parties challenge an agency order in different appeals courts, all the cases are supposed to go to a single appeals court, chosen through a random draw. The winner of this lottery was the 6th Circuit, which sits in Cincinnati.

It will now be up to the 6th Circuit to decide the fate of the OSHA rule. Maybe. It is unclear whether the lottery rule even applies in this instance. It comes into play only when “orders” are being challenged. Here, a rule is being challenged, and a “rule” is, by definition, not an “order.” The two are mutually exclusive. As the legal battle started, OSHA put its rule on ice until the court could resolve the matter.

Next up is the rule issued by the Centers for Medicare and Medicaid Services mandating all employees of hospitals and other health care providers that participate in the Medicare or Medicaid programs be vaccinated. This rule was challenged by three groups of states in three federal trial courts — Pensacola, Florida; St. Louis; and New Orleans.

The first case went the federal government’s way. A conservative judge in Pensacola concluded that Florida had not demonstrated that it would be irreparably injured by the rule and therefore, denied the state’s request for a temporary restraining order.

Nine days later, though, the St. Louis court preliminarily halted the rule in 10 states. The following day, the New Orleans court put the rule out of its misery by granting a nationwide preliminary injunction. It stressed both federal government overreach and CMS’ failure to go through notice-and-comment rule making as factors in its decision. 

Last to be reviewed judicially was Mr. Biden’s executive order mandating that government contractors require their employees to be vaccinated. It was challenged in a Kentucky federal court by the states of Kentucky, Ohio and Tennessee. The court issued an injunction on the requirement in those three states, finding the “president exceeded his authority.”

These successful legal challenges have all been mounted by states that are understandably concerned that the executive branch is seeking to encroach into areas traditionally reserved for state governance. The cases bring to the fore the tension that has existed throughout the life of our federal system, between state autonomy and federal authority. In recent years, the Supreme Court has been more mindful than in the past that federal power is inherently limited by the Constitution. Merely because federal action may be good for public health does not mean it is lawful or constitutional.

• Robert Charrow was the general counsel at the U.S. Department of Health and Human Services. The views expressed in this column are those of the author and do not necessarily reflect the views of his law firm or its clients.

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