I have to say, I didn’t see the OSHA COVID mandate coming. I get Jacobson (and I happen to think that the core legal principle will be upheld), but part of what I take from that case is that it’s the police powers of the states and local governments which are directly responsible for public health.

We do live in a federal system where there is an overlap of governmental jurisdictions and powers. However, other than the federal government’s jurisdiction over its employees, (and limiting entry into the US) I didn’t think the feds would ever try to assert its power to pass a general vaccine mandate. Hell, early in his tenure, even President Biden seemed to recognize that limitation. So like I said, I didn’t see that one coming.

And like many attorneys, I don’t think it’s going to fly.

You all know that the Fifth Circuit issued a start and issued a blistering opinion. But because of the multitudes of lawsuits against the mandate by the states and some private companies, by lottery, all the cases are being transferred to the Sixth Circuit, which is reputed to be very conservative. I would remind you that the Sixth Circuit rejected a stay of an Indiana district court judge’s refusal to grant a preliminary injunction on a religious exemption to the Indiana University’s COVID mandate. (Here is my post about that https://wp.me/p7pwQD-18J ). That case followed Jacobson . But this case is different is Jacobson is not a binding precedent, because it deals with technical issues of statutory interpretation and turf. That is to say the limitations of the federal government in general and under the 10th Amendment, which gives the states the powers to govern not expressly granted to the federal government.

Conservative or liberal, I think any federal court is going to have a hard time backing the feds on this. We are a year and a half into the pandemic. How long is the emergency going to last? What about when the virus becomes endemic? I think judges are going to struggle with giving the federal government open-ended control of an area that has historically been a matter of state concern and enforcement. One of the reasons is that different states have different requirements for COVID vaccination of their population. So, a national policy for employees seems unwise (the “one size fits all argument”).

Relatedly, the biggest stretch is the inclusion of federal contractors, albiet via a separate mandate. The University of California tried that and succeeded with that in the flu case, but it had Jacobson. . This is different. True in general the federal government as a party to a contract has the power to put whatever terms it wants in contracts, but I think it suffers the same problem as the OSHA mandate because it steps on the toes of the state’s police powers to regulate public health. Therefore and again, I think the judges deciding these cases are going to be very reluctant to give that kind of power to the federal government to impose a national vaccine mandate on workers or federal contractees. In terms of the OSHA mandate, it only applies to employers who have 100 employees. The fact that the mandate doesn’t effect employers with a smaller number of employees seems to make the mandate both arbitrary and ineffective from the get-go.

Of course, whatever the result, the losing party will file for a stay with the Supremes. FYI, I never thought the challenges to the NY health care workers’ vaccine mandate without a religious exemption had a chance of being accepted and adjudicated by the Supremes on its shadow docket. But this case is different for the two reasons I have mentioned. It’s not governed by Jacobson. More importantly, it’s a matter of federalism, meaning, the power of the state and local governments to regulate public health, and the federal government’s attempt to usurp that power. I think all federal judges are sensitive to that kind of issue.

If the mandate is rejected, it would not shock me if the decision was based on narrow statutory grounds, like the failure to establish a continuing emergency justifying an OSHA executive or administrative order or regulation. I think that upholding the OSHA mandate creates too big a precedent and opens the door to continued federal overreach. I don’t think the federal courts are going to allow it.

After 20 months of more government control over people’s lives than we have seen, maybe ever, I think people are getting pretty fed-up with government interference. I would expect the Sixth Circuit’s decision to reflect that sentiment, or at least be the impetus for continuing the injunction pending the trial of the case. And I would expect the Supremes to agree.

So, if you are targeted by the OSHA mandate and don’t want to get the shot, obviously, don’t quit and wait to see how it plays out. I think there is an excellent chance that the mandate will never go into effect, and I mean never. The mandate for federal government contractees may be a closer case, but in the end its overinclusion and underinclusion (as noted by the Fifth Circuit in its recent decision) I think will be the deciding factor in the court’s rejection of the rule.

Rick Jaffe, Esq.