Biden Administration Urges Businesses to Comply with Vaccine Mandates Despite Judicial Stay

Resolving the legal issues will take time we don't have.

President Joe Biden, joined by Vice President Kamala Harris, delivers remarks on the COVID-19 National Month of Action on Wednesday, June 2, 2021, in the South Court Auditorium in the Eisenhower Executive Office Building at the White House. (Official White House Photo by Adam Schultz)
Official White House Photo by Adam Schultz

The CNBC headline “White House tells businesses to proceed with vaccine mandate despite court-ordered pause” certainly got my attention, implying as it does a defiance of judicial orders that would have been noteworthy even in the Trump era. The report itself is rather more anodyne.

The White House on Monday said businesses should move forward with President Joe Biden’s vaccine and testing requirements for private businesses, despite a federal appeals court ordering a temporary halt to the rules.

“People should not wait,” White House Deputy Press Secretary Karine Jean-Pierre told reporters during a briefing. “They should continue to move forward and make sure they’re getting their workplace vaccinated.”

As I often note, the White House, like the Pentagon, is a building. But, when used in headlines or in attribution for a news story, though, the reader will naturally assume the President, the Secretary of Defense, or another extremely-high-level policymaker is issuing the statement or order. Journalists and editors surely know this.

A spokesman for the President is not the President. Moreover, there’s nothing in the quoted statement or anywhere else in the story indicating that the administration is threatening business owners with consequences if they don’t carry out the order notwithstanding a judicial stay. Rather, they’re simply urging businesses to get their people vaccinated and follow CDC recommendations.

As to the stay itself, it strikes me as reasonable enough given both the reasonableness of the challenges to the order’s legality and the burden it places on businesses.

The U.S. Court of Appeals for the 5th Circuit, considered one of the most conservative appellate courts in the country, halted the requirements Saturday pending review, writing that “the petitions give cause to believe there are grave statutory and constitutional issues with the Mandate.”

The Republican attorneys general in Texas, Louisiana, Mississippi, South Carolina and Utah, as well as several companies, requested the pause. They argued that the requirements exceed the authority of the Occupational Safety and Health Administration, which will enforce the mandates, and amount to an unconstitutional delegation of power to the executive branch by Congress.

I have no strong sense of how this will ultimately play out, as the case law here is murky and we’ve gotten mixed indications from the Roberts Court. There’s next to no question that state governors have the power to order vaccinations; it’s much less clear that the President/OSHA does.

In its response Monday evening, the Biden administration asked the court to lift the pause, dismissing the states’ and companies’ claims of harm as “premature” given that the deadlines for vaccination and testing are not until January. The administration claimed that pausing the requirements “would likely cost dozens or even hundreds of lives per day” as the virus spreads. The Labor and Justice Departments also argued that OSHA acted within its authority as established by Congress.

The court-ordered pause came a day after the requirements went into effect, starting the countdown for businesses with 100 or more employees to ensure their staff have received the shots required for full vaccination by Jan. 4. After that date, unvaccinated workers must submit a negative Covid-19 test weekly to enter the workplace. All unvaccinated workers must start wearing face masks indoors at their workplaces starting Dec. 5.

Republican attorneys general in at least 26 states have challenged Biden’s vaccine and testing requirements in five different U.S. appeals courts since last Friday. The Republican National Committee said it has also challenged the requirements in the D.C. Court of Appeals.

It’s unclear which court will ultimately decide the case. When multiple petitions are filed in at least two courts, the cases are consolidated in one of those courts through a lottery system. The Justice Department said in a filing Monday that the lottery is expected take place on or around Nov. 16. The Biden administration, in its response Monday, said the courts should not rule until the jurisdiction for the consolidated case has been selected.

David Vladeck, a professor of law at Georgetown University, said there’s a “high probability” that the case will end up before the Supreme Court.

“There are justices on the court who want to rein in the administrative state and this is a case in which those concerns are likely to come to the fore,” Vladeck told CNBC.

Given the stakes here, this seems like a case that the Supreme Court should expedite. Given that multiple states have filed suit against the US Government, it would seem to fall within SCOTUS’ purview to hear the cases under original jurisdiction rather than waiting for multiple circuits to rule on the matter.

OSHA, which polices workplace safety for the Labor Department, developed the vaccine and testing requirements under emergency authority established by Congress. That authority allows the agency to shortcut the process to issue workplace safety standards, which normally takes years.

The Labor Department’s top lawyer, Seema Nanda, said on Friday that the Biden administration is “fully prepared to defend this standard in court.”

Nanda said the law “explicitly gives OSHA the authority to act quickly in an emergency where the agency finds that workers are subjected to a grave danger and a new standard is necessary to protect them.”

Nanda also said the vaccine and testing requirements supersede “any state or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.” Texas Gov. Greg Abbott issued an executive order last month banning vaccine mandates in the Lone Star State.

OSHA emergency workplace safety standards have a mixed track record in court. Prior to the vaccine requirements, the agency had issued 10 such standards in its 50-year history. Courts halted or overturned four of those standards, and a fifth was partially vacated.

More than 750,000 people have died in the U.S. from Covid since the pandemic began, according to data from the Centers for Disease Control and Prevention. More than 1,100 people a day die from Covid, and more than 71,000 people a day are newly infected, according to data from Johns Hopkins University.

“If that’s not a grave danger, I don’t know what else is,” Jean-Pierre told reporters Monday.

As a matter of policy, I favor the mandates. They strike me as eminently sensible in the face of a pandemic that has killed more Americans than all our wars combined. The vaccines are incredibly effective and we’ve got an enormous amount of data at this point indicating that they are quite safe. Whether OSHA has been delegated sufficient power to issue them—or whether they are within the Constitutional limits of Federal power—is simply not something I have a strong opinion on.

FILED UNDER: Joe Biden, Law and the Courts, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. KM says:

    There’s next to no question that state governors have the power to order vaccinations; it’s much less clear that the President/OSHA does.

    One could make that argument but for POTUS but for OSHA, the department who’s job is workplace safety? Ludicrous. Vaccine mandates in the workplace have been common for decades but repubs never noticed them as they were uncontroversial till recently. Most adults in America are vaxxed because their parents did the right thing and thus they’ve never had to bother with their status unless traveling outside the country or specific working conditions arise. For instance, Hep B – one of the docs for my newest hire is a declaration of Hep B vax status and the notice that they were offered the shot by the company if he didn’t already have it but declined. He was extremely confused and consulted with his doctor, only to be surprised to find out that he had been vaxxed when younger but a booster never hurts. It’s never come up in his life so why would he need to know? Oh yeah, his new job puts him at high risk so get the jabs. We told him he didn’t technically have to get the shots but considering it was free and would save him thousands in medical bills otherwise why the hell not?

    OSHA deals with vaccines and has had the right to monitor and intervene when a preventable illness starts spreading and risking worker safety for quite some time. Outbreaks of TB and Hep B are acceptable to handle but not COVID? BS political grandstanding.

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  2. OzarkHillbilly says:

    @KM: OSHA deals with vaccines and has had the right to monitor and intervene when a preventable illness starts spreading and risking worker safety for quite some time. Outbreaks of TB and Hep B are acceptable to handle but not COVID? BS political grandstanding.

    Ding ding ding… That’s a winner.

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  3. gVOR08 says:

    IANAL and have no opinion about the extent of OSHA authority beyond a general concern that the Federalist Society has a thing about the “regulatory state”.

    I do get a chuckle out of our legal system’s sometimes tenuous connection to the real world. What “harm” is the stay preventing? A few people who otherwise might not would get a free, safe, effective vaccine preventing them from getting or spreading a potentially deadly disease. Where’s the harm? Oh, I forgot, Paxton and the other Red State AGs are alleging some gobbledygook about “Freedumb!!!”, i.e. their pander to the base might be delayed.

  4. James Joyner says:

    @KM: @OzarkHillbilly: OSHA doesn’t mandate that anyone get the Hep B vaccine. Rather, they mandate that employers offer the vaccine and training as to why it’s advisable. But employees are allowed to decline if they sign a form saying they’ve received said training and wish to opt out.

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  5. James Joyner says:

    @gVOR08:

    What “harm” is the stay preventing?

    I don’t think it’s the purpose of the lawsuits but a fairly significant number of people are declining the vaccine even in the face of mandates, putting an additional strain on the ability of these companies to retain workers.

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  6. CSK says:

    Speaking of vaccines and mandates, I read this morning that in Greece, some people are bribing doctors 400 Euros to give them shots of water rather than the vax. The doctors are pocketing the bribes and giving the patients the vaccine anyway–unbeknownst to the recipient.

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  7. Crusty Dem says:

    @CSK:

    Finally, a grift that benefits everyone!! I fully support this.

    5
  8. OzarkHillbilly says:

    @James Joyner: OK, my bad.

    1
  9. OzarkHillbilly says:

    @James Joyner: putting an additional strain on the ability of these companies to retain workers.

    I have to wonder how they think they are going to “retain their workforce” if they have a covid outbreak.

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  10. Kathy says:

    @CSK:

    There is water in the vaccine. So the covidiots are getting what they ask for.

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  11. Gustopher says:

    @James Joyner: OSHA is not mandating a vaccine here either — it’s a vaccine or regular testing. It is also only for employees who interact with other employees.

    It’s carefully written (and weaker than I would like) to only address keeping the workplace safe, which is exactly the traditional purview of OSHA. If this is overreach by OSHA, that actually would put decades of worker safety regulations into question.

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  12. Sleeping Dog says:

    @Gustopher:

    …that actually would put decades of worker safety regulations into question.

    Which is another goal for certain cast on the right.

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  13. gVOR08 says:

    @Gustopher:

    If this is overreach by OSHA, that actually would put decades of worker safety regulations into question.

    Which for the Federalist Society drones would be a feature, not a bug.

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  14. gVOR08 says:

    @gVOR08: Oops, sorry @Sleeping Dog:

  15. Sleeping Dog says:

    @gVOR08:

    No reason, great minds and all 🙂

  16. KM says:

    @Gustopher:
    Exactly – the option to decline the vaccine *is* oversight and power of regulation as you are giving them the choice of shot or testing, not a shot vs no shot. OSHA has the purview to insist on monitoring safety conditions (infection) by offering a range of compliance options. Non-compliance (vax denial) is something they have to and absolutely should address as it can kill the worker, something OSHA was designed to prevent.

    Claiming OSHA have no legal right to deal with vax standards is a HUGE freaking problem as there are plenty of other infectious diseases that would meet those same legal standards currently under regulations. TB, Hep B, whooping cough, measles, HIV, you name it – there are so many jobs that put you in immediate risk of infection (and thus possible death) so there are necessary rules. You work with food in any way? Guess what – you’re at risk for like 20 different things just being there. You work somewhere blood could be spilled, even accidently (which is pretty much all of them)? Yeah, you’re gonna care OSHA’s not letting corporate America give you all the cooties.

    Like CRT, this is being used as a backdoor to eliminate decades old regulations or norms for a specific ideology’s sake. Yell about the manufactured hot button issue, claim it’s “illegal” to do things the way they’ve always been done and quietly kill the thing that’s keeping you from imposing your own noxious views on the world.

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  17. Kathy says:

    Many of our government customers required negative PCR and antibody tests of all personnel involved in handling, preparing, and serving food. this year they are adding vaccination certificates. Since all adults are eligible for the vaccine, and all have had a chance to get it, this seems sensible.

    The only problem is once vaccinated all antibody tests will come back positive. So we will have to get them to remove that requirement.

    This doesn’t come with a federal mandate, but rather various government agencies put this requirement for suppliers submitting proposals. It’s also in addition to other clinical tests that may indicate communicable disease. And all personnel have, long before the pandemic, been required to wear masks when working with food.