The following article by Timothy L. O’Brien appeared on November 8, 2021 on washingtonpost.com.
On Saturday, three federal appeals court judges in Louisiana, responding to petitions filed by Southern states, business owners, a handful of workers and advocacy groups, temporarily blocked the Biden administration’s requirement that workplaces employing 100 or more people become fully vaccinated by Jan. 4 or implement weekly testing.
The judges wrote that “there are grave statutory and constitutional issues with the mandate” and stayed the administration’s order so the court could assess it. Politics plays a role in all of this, of course. Two of the three judges are Trump appointees, the other is a Reagan appointee, and one of the business owners taking on the federal government is backed by the Pelican Institute for Public Policy and the Liberty Justice Center.The Pelican Institute, a conservative think tank that “believes every person should have the opportunity to flourish,” is run by an alumnus of the Koch family’s policy network and is funded by and affiliated with a broader conservative network that also includes the Kochs. The Liberty Justice Center, a nonprofit advocacy group that litigates to “stake out Americans’ constitutional rights,” is funded by and affiliated with a similar network.
Other litigation is at hand, too. At least 27 Republican-led states, represented by a smaller number of state attorneys general, filed lawsuits late last week in circuit courts around the country as they sought to block the Biden mandates, which were clarified and given a deadline on Thursday.
But regardless of the politics hovering around the litigation, the theories and rights being contested are as old as the U.S. The threads weaving the various lawsuits together are questions about the limits of federal authority, the assertion of states’ rights and the independence of businesses and individuals. Louisiana Attorney General Jeff Landry, who was a party to the successful petition, said the appeals court ruling was a “major win for the liberty of job creators and their employees.”
Brandon Trosclair, one of the business owners who petitioned the appeals court, runs several companies and employs about 500 people in 15 grocery stores in Louisiana and Mississippi. Under the new federal rules, Trosclair would have to fire unvaccinated employees or face a hefty fine for each worker he allows to skirt the mandate, which will be enforced through the Labor Department’s Occupational Safety and Health Administration.
“Over the past 20 months, my employees have showed up to work and served their communities in the face of COVID and hurricanes. Now I’m being told by the government to insert myself into their private health decisions,” Trosclair said in a statement. “That’s wrong and I won’t stand for it.”
Trosclair’s petition says that OSHA is not “the nation’s public health authority” and that by seeking to enforce a mandate through an emergency order it is exceeding its “statutory authority and flunks the high bar set for such sweeping exercise of economy-wide administrative power.”
“Vaccination is a public health issue that affects people throughout society; COVID-19 is not a hazard particular to the workplace,” the petition adds. “And there is no need to utilize an emergency rule to address COVID-19, which has been going on for nearly two years.”
In other words, nobody should presume to set national health guidelines; hazards that extend beyond the workplace cannot be regulated in the workplace; and emergency powers should not be deployed around mandates because the pandemic is not an emergency — it has lasted nearly two years, after all.
Seema Nanda, the Labor Department’s solicitor, is having none of this. “The Occupational Safety and Health Act 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,” she said in a statement.
Is Covid-19 a grave danger? Is the pandemic an emergency? I think it’s a grave danger because millions of people have become ill and died, and had vaccines not come along, we’d be in a deeper mess than we already are. But that’s just me, looking at data and the world around me. One person’s “grave danger” could be another person’s “I’m not too worried about it,” perhaps. I also think it’s an emergency. That’s not just me. Former President Donald Trump referred to the pandemic as “our big war” and compared himself to a “wartime president.” People give up some of their liberties and allow central authorities to run things for a while during wartime. If the pandemic is a war, we also need new standards in place to protect ourselves.
You can argue all you want that diseases that travel beyond the workplace aren’t simply workplace threats — but if a disease stalks a workplace and endangers workers, then it sure seems like a workplace threat. (Remember tobacco? That got regulated in the workplace, too, even though people were also smoking or being exposed to smoke everywhere else.)
And should Big Brother tell states what to do?The Biden administration has said its mandates are narrowly drawn, applying only to federally regulated workplaces, federal employees and federal contractors. It hasn’t claimed extra-constitutional powers. The Supreme Court has established that state and local governments have the right to impose mandates in certain circumstances, though those rulings remain nebulous enough that they are likely to be regularly contested as well.
Congress and state legislatures could make it easier on the courts by offering more well-defined guidelines about what constitutes a public health emergency, an effort that would surely help the country fight the next infectious disease. We have ample evidence that vaccines and mandates work, but that proof has repeatedly been put into play by debates over states’ rights and personal freedoms.
At least 15 state legislatures have enacted or proposed measures circumscribing public health agencies’ independence and legal powers. At least 46 states have introduced bills meant to curb gubernatorial or executive actions during health-care crises, national security flare-ups, natural disasters and other emergencies. None of that signals that enough politicians are ready to act like grown-ups instead of hacks.
Hypocrisy has abounded throughout the pandemic, too. Governors who contend the federal government has no right to tell them what to do have no problem telling local mayors across their states what to do. Maybe mayors have no right to tell their residents what to do? All of this emphasis on local control and individual liberty can quickly spiral down into granular absurdity if people don’t want to find constructive solutions to national problems that towns, cities and, yes, states, can’t solve on their own.
The federal government has to respond to the appellate court by Monday evening. It offers the Biden administration a chance to remind the court that a majority of Americans in and out of the workplace support mandates and that challenges to them have been defeated in court thus far — and that common goals and the common good should prevail.
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