Tomorrow, Wednesday, September 29th, a three-judge panel of the Second Circuit Court of Appeals will hear arguments on continuing the stay of NY City’s vaccine mandate for school teachers and other school employees.
To recap, the district court denied a preliminary injunction motion on 9/23, but a circuit judge issued a stay of the vaccine mandate the next day to allow a three-judge panel to consider the matter. So right now there is a stay of the mandate until the panel hears the matter tomorrow morning.
UPDATE: The panel has just dissolved the stay of enforcement, meaning the mandate is now in effect. The court also denied the preliminary injunction pending appeal so the motion is over (and the stay is dissolved and the mandate is in effect). Here is the new order. Maniscalco TRO dissolved
However, there appears to be a companion case involving New York City health care workers which will be heard tomorrow by the same panel. The Court is only going to consider the First Amendment freedom of religion argument. Meaning all other arguments raised have already been decided by the judges.
(End of the update, now back to what I had previously written. Unfortunately, as you can see, the panel did not give any explanation of its decision. But you can read the below for my views about why it did what it did.)
Here is the stay, the district court’s decision denying the injunction and plaintiffs’ complaint.
First question: How much can you read into the fact that one circuit court judge issued a stay?
Probably not much. This is an important issue that had a deadline before the panel could hear the issue, so I think it was prudent and reasonable to issue the stay which will only delay the mandate by less than two days, (if the stay is vacated by the panel).
So I don’t think people should read too much into what may only be a two-day stay.
The big question: What’s the panel going to do?
I have read the lower court’s opinion which summarizes the plaintiffs’ arguments, but I have not reviewed the filings by the parties. But I have seen the papers in other vaccine mandate cases. More importantly, I do have some very specific opinions about what the law is and how these cases are decided by judges.
The plaintiffs’ main argument appears to be that that they have a fundamental right to employment which is violated by the NYC department of education vaccine mandate which does not allow for alternative compliance via testing. They also argue the lack of alternative compliance which option other city employees have is discriminatory and irrational. Finally, they make the now oft-used antibody argument. (I’ve had COVID so I have the antibodies so I don’t need the vaccine or there is no proof that it is necessary and natural immunity is better than vaccine immunity).
I think the panel will deny the continued stay and allow the case to proceed. Meaning, the vaccine mandate will go into effect requiring NYC school personal to be vaccinated or be fired.
Here is my reasoning.
First, I do not think whatever fundamental right to work there is or may be in a general sense, applies to a person who is opposed to vaccines (or this vaccine) in the face of a vaccine mandate. (This case does not technically involve the religious accommodation, as pled). I’m not going too far out on a limb here because that is what all the judges have said who have dealt with the issue (i.e. the federal district judge in Indiana, the Sixth Circuit reviewing the Indiana’s district judge’s decision, the Houston federal judge, and two judges in the Central District of California, the Ninth Circuit panel reviewing one of the central district judge’s decisions. And of course, this is the thrust of the Brooklyn District judge Brian Cogan’s decision.)
Digging deeper, once a judge decides that there is no fundamental right, then the judge uses a rational relationship test, which practically means that the regulation survives. What that means methodologically is that the courts can speculate about possible justifications for the law. More importantly, under a rational relationship test, the courts defer to the decision-makers to make the decisions.
There is basically no second-guessing of a decision-maker under a rational relationship test. That is the reason why most constitutional cases are all about the standard of review. It is often said, that if it’s strict scrutiny the law/regulation/policy usually gets struck down, and if the test is a rational relationship, the law or rule is upheld.
Analogously, with equal protection arguments, if a rule involves a fundamental right or a suspect class, strict scrutiny applies. If not, then the test is rational relationship and the regulation is upheld.
Finally, with respect to the antibody argument, I think the answer is simple: Judges don’t feel comfortable deciding scientific or public health issues. They defer to the regulators who are assisted by experts. I think that is the fundamental strategic mistake made in many of these cases; namely, thinking that some judge or group of judges are going to wade into scientific issues, especially when you are arguing against mainstream science. If that’s your argument, you’re going to lose (in my opinion anyway, and regrettably I speak from some experience on this issue).
That is what I see happening tomorrow, and I think we will have an answer tomorrow at the end of the hearing.
Rick Jaffe, Esq.