by Michael C. Dorf [Cornell Law School]
Yesterday SCOTUS heard expedited challenges to the Biden administration's OSHA vaccine rules for workplaces (transcript here) and to healthcare worker vaccine rules for Medicaid/Medicare recipients (transcript here). I don't want to say there is nothing to the challengers' arguments. Surely they're right that it's a bit odd to use number of employees as a proxy for COVID spread risk. Hundreds of truckers each in their own long-haul cabs but working for the same company face substantially lower risk than 99 workers on a crowded factory floor; yet the OSHA emergency rule applies to the former but not the latter.
Still, I don't think that the lack of precise tailoring renders the rule arbitrary and capricious, given the deference ordinarily accorded administrative agencies. Nor are the challengers' other arguments at all good.
OSHA is empowered to protect workers' health (the word is right there in the name Occupational Safety and Health Administration), which does not mean it can't protect workers from risks that also exist "out there in the world" (as Chief Justice Roberts put it) if the workplace heightens them (or maybe even if it doesn't).
In any event, my main takeaway from the argument was rare sympathy for Justice Breyer's rambling. Although he has lately taken to rambling in every oral argument, he was understandably tongue-tied when, early in the OSHA argument he asked incredulously whether, in light of the Omicron surge's impact on cases and hospital capacity, the challengers were really asking for emergency relief at this moment. It's one thing when Tucker Carlson or Senator Ron Johnson talks as though a vaccine mandate, rather than COVID itself, is the emergency. It's quite another to hear that argument taken seriously by the Supreme Court.
And yet, I agree with Amy Howe (on SCOTUSblog) and other observers who think the Court is likely to invalidate at least the OSHA rule. I might have more to say about the issues of statutory construction and administrative law after the decisions are issued, but for today, I want to say a little bit about three different kinds of rationales for a vaccine mandate.
I hasten to add that the Biden administration's rules aren't even vaccine mandates. They're conditions and choices (although the challengers in the OSHA case say that the testing alternative isn't real right now because of the scarcity of tests). In any event, I want to analyze a genuine mandate of the form everyone without a very good medical excuse (like a documented vaccine allergy) must be vaccinated. I do so to clarify the government interests that underwrite vaccine mandates. I'll use categories drawn from constitutional law because they are familiar and helpful, but my main interest is how to balance the underlying values as a matter of policy (which, as Prof Segall would likely remind us, is also what's going on in the constitutional analysis).
(1) Paternalism. In a less libertarian society than ours, paternalism would be a sufficient basis for a vaccine mandate, just as it is a sufficient basis for laws that require car drivers and passengers to wear seat belts, workers to use safety goggles when operating certain machinery, and motorcycle riders to wear helmets. To be sure, many jurisdictions eschew some such obligations on libertarian grounds. Thus, only 15 states and the District of Columbia require all motorcycle riders to wear helmets; most other states mandate helmets only for minors. Still, paternalism is a generally acceptable justification for regulation. Or as Holmes famously put the point in his Lochner dissent, "[t]he liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same [is] a shibboleth . . . ."
Yet while paternalism may be a morally and constitutionally adequate justification for most laws, it isn't an adequate justification for all laws. In particular, even in cases denying relief to the particular plaintiffs in right-to-die cases, the Supreme Court has recognized a constitutional dimension to the common law right to refuse medical treatment. If--as the Court assumed and five Justices specifically averred in the Cruzan case--a competent adult can refuse lifesaving medical treatment in the form of a feeding tube and intravenous hydration, it seems to follow that such a person can also refuse potentially lifesaving preventative medical interventions like a vaccine.
But Cruzan didn't purport to overrule Jacobson v. Massachusetts, the 1908 case that upheld mandatory smallpox vaccination--although some libertarians suggest that Jacobson may no longer be good law. Are those libertarians right?
It's possible that the current Supreme Court would say they are, but that's not a necessary conclusion. Jacobson can be readily reconciled with the modern case law with the following proposition: Government generally may not invade an otherwise competent person's bodily integrity in the name of that person's own wellbeing but may do so to further some very substantial (or compelling) other-regarding interest. And indeed, the Jacobson Court discussed the state's interest as one in preventing the spread of smallpox, i.e., it focused on the danger to others from failure to vaccinate, not on the danger to the unvaccinated individuals themselves. Modern case law pretty clearly accepts that line. For example, Breithaupt v. Abram and Schmerber v. California allow the state to insert a needle into an unwilling person's arm to draw blood to test for drunk driving.
(2) Herd immunity. KEEP READING
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