Dorf on Law: Three Rationales for Vaccine Mandates

The Administrative Procedure Act makes rational basis the key test for judicial review of agency rules and regulations.  Only those which are arbitrary and capricious are vulnerable.  Or unconstitutional.  The Supreme Court could use its judge-made doctrines of :major question" and "non-delegation" to strike or limit the vaccine and testing mandate Rules.  IMO the rational baiss is readily met.  And the others are groundless creations of the Fed Soc judicial right which has turned from "strict construction", "textualism" , and "original public meaning" to historically unmoored, ideological tools for dismantling the administrative state which is the legacy of the Roosevelt New Deal era.  - GWC

Dorf on Law: Three Rationales for Vaccine Mandates

Three Rationales for Vaccine Mandates

by Michael C. Dorf  January 8, 2022

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.

1) Paternalism

2) Herd Immunity

3) Limit Resource consumption