On January 7, the U.S. Supreme Court will hear oral arguments on the federal mandate for health care workers and the testing-or-vaccine rules for large employers. The justices scheduled expedited hearings in the cases and may have a ruling within a few weeks.
Lower courts have been mostly permissive of vaccine mandates imposed by private companies. State and local governments, too, have been mostly seen by judges as having broad authority to require vaccines. The mandate for large employers imposed by the federal Occupational Safety and Health Administration (OSHA) faces a different hurdles.
The 5th US Circuit Court of Appeals, in one of the most aggressive opinions against the OSHA mandate, said the vaccine rule for large employers likely exceeded the "federal government's authority under the Commerce Clause because it regulates noneconomic activity that falls squarely within the States' police power."
But the 6th Circuit Court of Appeals has reinstated the rule finding that the national public health emergency warrants a federal response. A dissenting opinion said, in part, that OSHA does not have the authority to protect workers from choosing to harm themselves.
The Commerce Clause gives the federal government to power to regulate interstate commerce but limits the regulation of non-commercial activity.
"In recent years, the Court has reinvigorated the use of the Commerce Clause to pare down federal laws," says John Sarno, president of the Employers Association of New Jersey.
For example, the Affordable Care Act's mandate for individuals to purchase heath care coverage was invalided as violating the Commerce Clause because the law sought to regulate individuals who were not participants in the healthcare market.
“The individual mandate ... does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the grounds that their failure to do so affects interstate commerce,” the majority of the court said.
Parts of the Violence Against Women's Act were also invalided when the court said that domestic violence was not commercial activity.
Likewise, getting a vaccine may not be a commercial activity.
When Congress passed the Occupational Safety and Health Act it said, "the reach of the Commerce Clause extends beyond Federal regulation of the channels and instrumentalities of interstate commerce so as to empower Congress to regulate conditions or activities which affect commerce even though the activity or condition may itself not be commerce and may be purely intrastate in character."
“That expansive interpretation has formed the basis of hundreds of federal regulations for sixty years and landmark laws like the Civil Rights Act and the Americans with Disabilities Act. It may seem arcane to people but it’s the difference between whether the federal government can protect the environment and the public health or whether it is left the states,” says Sarno.
To most legal observers, the OSHA’s vaccine rule appears to fall into the intersection of long lines of cases upholding federal laws and seems to be supported by existing caselaw precedent. OSHA and other agencies have hundreds of rules requiring workplace action, preventing discrimination and harassment at work, for example.
And courts have been traditionally been reluctant to overrule federal agencies that have expertise in their area of regulation.
But the current court has not been hesitant to curtail federal authority. In addition to the health and domestic violence laws, the Drug Free Schools Act was also invalidated, the court finding that the local crimes were not commercial activity.
“The pandemic is impacting society dramatically, how we interact with one another, how we live and how we conduct business. It is impacting the economy enormously. It may also impact how we govern ourselves. A narrow reading [of the Commerce Clause] may determine whether the national government can deal with public health and safety in any meaningful way for generations to come,” adds Sarno.