The High Court stays the OSHA mandate but upholds the CMS mandate

The decision we’ve all been waiting for finally arrived today.  In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate.

For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine as Congress did not clearly delegate OSHA authority to issue the mandate.  Justice Gorsuch, joined by Justice Thomas and Justice Alito, wrote a separate concurring opinion.  That separate opinion emphasized the role that the major questions doctrine plays in avoiding unconstitutional delegations of power from Congress to agencies.  Justice Breyer, Justice Sotomayor and Justice Kagan wrote a joint dissenting opinion.  According to those justices, the mandate clearly fell within the ambit of the agencies’ delegated power from Congress under the OSH Act.

The Court likewise issued a per curiam opinion for the CMS mandate, which it upheld.  The Court agreed with the Government that the CMS mandate “falls within the authorities that Congress has conferred upon” the agency.  Justice Thomas wrote a dissenting opinion joined by Justices Alito, Gorsuch, and Barrett.  According to Justice Thomas, the Government had not established that any statute empowers it to impose a vaccine mandate.  Justice Alito penned his own dissent, joined by Justices Thomas, Gorsuch, and Barrett.  Justice Alito wrote that even if the Government had the statutory authority to require vaccination of healthcare workers, it did not have the authority to bypass normal notice and comment procedures in issuing the mandate.

Although today’s stay decisions are only supposed to be about temporary relief while the Court considers the merits, today’s decisions essentially resolve the merits for each case.  We will discuss both decisions — and their implications — more fully in future posts.  For now, happy reading to all of you who have yet to dive into the opinions!

Analysis Of The Supreme Court’s Oral Argument Yesterday

After listening to the oral arguments at the Supreme Court, we think the Court will likely issue an administrative stay to delay implementation of the first ETS deadline by Monday, January 10.  U.S. Solicitor General Elizabeth Prelogar admitted that such a stay might be appropriate if the Court needed some breathing space (as it clearly needs) to decide the important issues presented here.

As we predicted in our last post, the most important issue was whether the OSH Act requires that an ETS be indispensable or essential to be “necessary.” Ohio Solicitor General Benjamin Flowers (representing the States) and Scott Keller (representing business associations) argued that the ETS was not narrowly tailored, as it was broadly targeted to indoor gatherings. They argued that Judge Larsen’s Sixth Circuit opinion was “absolutely correct” in reasoning that just because the ETS is “temporary” doesn’t mean it allows OSHA to exercise more power than Congress gave the agency.  Solicitor General Prelogar responded that OSHA had identified a baseline risk presented by all workplaces with 100 or more employees, and that the challengers had not met their burden in trying to overturn that finding.

The justices did not hide their views.  Justices Breyer, Sotomayor, and Kagan each repeatedly stressed that preventing disease transmission in the workplace is clearly within the scope of the OSH Act, and that the ETS is clearly necessary based on the the human toll of the pandemic.  They focused on recent hospitalization and infection statistics (which are both scary and outside of the administrative record).  Chief Justice Roberts, Justice Gorsuch, and Justice Kavanaugh were keenly interested in the “who decides” question.  (Coincidentally, Chief Judge Sutton has a new book with that exact title.)  They were concerned that the 50-year-old OSH Act was not clear enough for this issue, and that Congress should be required to act on this issue of vast economic and political significance.  Justices Gorsuch and Kavanaugh were interested in whether the Court could invoke the major questions doctrine even without finding the OSH Act ambiguous. Chief Justice Roberts and Justice Thomas appeared to take a more pragmatic view, though they still appeared to favor the challengers. Roberts, in particular, noted the various mandates issued by the Biden Administration and suggested that the Administration was trying to find a “workaround” the legislative process by latching onto old and possibly ill-fitting statutes to target a new national problem that really required Congress to fix.

Justice Barrett cited to Chief Judge Sutton’s opinion to signal her agreement with his point about the tension with using a supposedly temporary ETS to combat a potentially interminable virus that the country could be living with for many years to come. The Solicitor General responded that OSHA would need to go through the notice and comment process and that the necessity of an ETS would always have to be justified by the facts on the ground. Justice Alito, in turn, repeatedly emphasized that the risk presented by COVID-19 today was really only one that unvaccinated individuals had chosen to assume for themselves.  He was especially interested in an administrative stay while the Court considers the merits.

The upshot is that the issue has fallen on predictable lines.  The six conservative justices appear inclined to overturn the ETS, though a handful appeared open to the idea that parts of the ETS were more likely to survive scrutiny than others.  The three liberal justices would clearly uphold the ETS.  We also believe that the more targeted CMS mandate is more likely to survive Supreme Court scrutiny than the broader OSHA mandate.

The OSHA Mandate — Supreme Court Oral Argument Preview

Tomorrow morning (Friday, January 7), the Supreme Court hears oral argument in the OSHA (10 a.m. EST) and CMS (11 a.m. EST) mandate cases.  (You can listen to the arguments live here.)  For the OSHA mandate, one group of petitioners consists of a coalition of twenty-seven States, led by Ohio, and the other consists of a coalition of business associations.  We’ve read the briefs, and here are our issues to look out for tomorrow:

Whether OSHA may only regulate occupational dangers.  The petitioners argue that because the OSH Act and OSHA regulations are all concerned with occupational hazards, OSHA cannot regulate against a virus presenting a risk to all Americans.  Meanwhile, OSHA argues that the OSH Act is not limited to dangers that are workplace-specific, especially given Congress’ previous endorsement of OSHA’s measures to encourage vaccination against bloodborne pathogens.

Whether COVID-19 is a “grave danger” that represents a “new hazard.”  The States argue that the OSH ACT limits “grave danger” to those “from exposure to substances are agents determined to be toxic or physically harmful,” connoting toxicity and poisonousness.  Thus, it cannot refer to airborne viruses that are “both widely present in society” and “non-life-threatening to a vast majority of employees.”  OSHA argues that the statute’s disjunctive phrasing allows for an ETS targeting viruses that are physically harmful, or a “new hazard, even if not technically “toxic” in nature.

Whether there is an “emergency” to justify the ETS.  The petitioners continue to argue that nothing significant has changed over the past year the country had been living with the virus to justify finding an emergency.  OSHA responds by pointing to problems presented by the return to work, the Delta variant, and COVID fatigue.

Whether the ETS is “necessary.”  The States argue that the OSH Act imposes a higher standard:  while other regulations may be merely “reasonably necessary or appropriate,” the Act requires emergency regulations to be “necessary”—which the States read as essential or indispensable.  According to the States, the delay between the issuance of the ETS and the time it was supposed to go into effect dooms any argument that it is necessary.  The business associations, for their part, stress that OSHA could have gone through notice and comment proceedings months ago.  In OSHA’s view, the statute is not nearly so narrow and it is enough that workplaces contribute substantially to the spread of the virus and that vaccines are the best way to fight COVID-19.

The scope of relief.  The petitioners obviously want to stay the entire mandate—both the vaccine and masking/testing requirements.  OSHA argues that any stay should be limited to the vaccine requirement.

Major-questions doctrine and federalism canon.  The petitioners argue that these canons of construction require Congress to speak clearly when delegating major economic and political questions to agencies that alter the balance between federal and state governments.  OSHA argues that neither of these canons apply and, in any event, Congress did speak clearly, as evidenced by the fact that it recently allocated $100 million to OSHA to carry out COVID-19 related worker protection activities.

Facts outside the administrative record.   While the OSHA and CMS mandates are supposed to be judged according to the record — which makes much of the factual discussion seem a little dated in this fast-moving pandemic — we’ll be interested to see whether the Omicron variant, the recent spike in cases, and other relatively recent developments show up at oral argument.

And, maybe, a few Constitutional issues.  While constitutional issues like the Commerce Clause and Non-Delegation Doctrine might appear tomorrow, we expect the statutory arguments to dominate the discussion—exactly as they did in the parties’ Supreme Court and Sixth Circuit briefing and in most Sixth Circuit opinions.

We’ll be interested to see how the opinions of Judge Stranch, Judge Larsen, Judge Sutton, and Judge Bush influence the Justices’ approach to the legal and factual questions.

The Sixth Circuit Deals Another Blow to the Contractor Mandate

As readers of this Blog know, the OSHA vaccine-or-test mandate has occupied much of the Sixth Circuit’s time the past few weeks.  That mandate is now before the Supreme Court, which hears oral argument on the OSHA and CMS mandates tomorrow.  In the meantime, a third pandemic-era mandate—the federal contractor mandate—made its own splash in the Sixth Circuit yesterday.

That mandate, issued by the Safer Federal Workforce Task Force, requires employees of federal contractors in “covered contracts” to become fully vaccinated against COVID-19.  This “contractor mandate” potentially covers roughly one-fifth of the entire U.S. workforce.

Kentucky, Ohio, Tennessee, and two Ohio sheriffs’ offices filed suit in the Eastern District of Kentucky, seeking declaratory and injunctive relief.  They argued, among other things, that the Federal Property and Administrative Services Act of 1949 (the “Property Act”) — the basis for the Task Force’s authority — does not allow for such a broad mandate.  They also argued that the mandate violates the Administrative Procedure Act, separation of powers, and creates federalism problems.

As readers may know, Judge Van Tatenhove enjoined enforcement of the contractor mandate throughout Kentucky, Ohio, and Tennessee.  By the time the federal government sought a stay of that injunction with the Sixth Circuit, another district court in Georgia had already issued a nationwide injunction against the mandate.  The Eleventh Circuit would later refuse to stay that injunction.  To our knowledge, the Department of Justice has not sought a stay with the Supreme Court for any of these rulings.

Yesterday, the Sixth Circuit essentially agreed with the Eleventh Circuit and refused to stay Judge Van Tatenhove’s injunction.  Judge Bush, joined by Judge Suhrheinrich, found that the States and sheriffs’ offices had standing to sue and that the federal government had “established none of the showings required to obtain a stay.”  In Judge Bush’s view, the contractor mandate constituted an illicit re-envisioning of the decades-old Property Act’s “uncontroversial purpose”  to facilitate the “economical and efficient” purchase of goods and services on behalf of the federal government.  Judge Cole penned a short dissent, arguing that neither the States nor the sheriffs’ offices had standing and that the contractor mandate did not exceed the Task Force’s authority under the Property Act.

Given the potential importance of these opinions, we will be doing a deeper dive into both the majority and dissenting opinions in the coming days, so, as always, stay tuned.   We will also be posting an argument preview for tomorrow’s Supreme Court argument in the OHSA ETS case.

Vaccine Cases Step Out of the Shadows at High Court

An important development occurred yesterday evening in both the OSHA and CMS vaccine mandate cases pending before the Supreme Court.  The Court took the very rare step of scheduling a special hearing for both sets of cases.  The hearing will be held on Friday, January 7, 2022.

In the OSHA mandate cases, the Court consolidated two (of several) cases and scheduled a total of one hour of oral argument for the cases.  The two groups of challengers in the consolidated cases are a coalition of twenty-seven States led by Ohio and a coalition of twenty-six business associations represented by Lehotsky Keller LLP.

In the CMS mandate cases, the Court consolidated the two (of two) cases currently before it and, as with the OSHA mandate cases, scheduled a total of one hour of oral argument time.  The challengers in one of the cases are a coalition of fourteen states led by Louisiana.  The challengers in the other case are a coalition of ten states led by Missouri.

The Court’s decision to schedule a hearing on the emergency stay applications pending in both sets of cases is almost without precedent.  We say “almost” because the one (and only) time the full Court heard oral argument on an emergency stay application was way back in December 1970 in the classic administrative-law case of Citizens to Preserve Overton Park v. Volpe.  Beyond that, individual justices (as opposed to the full Court) have heard oral argument in chambers a handful of times, most recently in 1980 in Blum v. Cardwell.  Suffice to say, it is exceedingly rare for the Court to hear oral argument on stay applications.  It seems likely the Court did so here as a reaction to the criticism the Court has received recently for deciding key issues on its “shadow docket” without the benefit of oral argument.

The timing of the scheduled arguments is also notable.  Recall, they will occur on Friday, January 7, 2022.  The following Monday, January 10, 2022, is the date of OSHA’s first implementation deadline.  That’s the deadline by which employers with 100 or more employees must, among other things, have a written vaccine policy, require masking for unvaccinated employees, and provide paid-time-off for employees to get vaccinated.  The second (and last) deadline for the OSHA mandate is on February 9, 2022.  That’s the date by which employers must require unvaccinated employees to begin testing weekly for COVID-19.  (As of now, CMS has not offered additional guidance about implementation deadlines for its mandate after the Fifth Circuit struck down a nationwide injunction against the mandate for most States while refusing to stay the injunction for other States.)

It is very possible that the Court will issue a decision at least on the OSHA mandate during the weekend between the January 7 argument and OSHA’s first implementation deadline on January 10.  And it seems almost certain the Court will do so before OSHA’s second implementation deadline on February 9.

It’s perhaps worth noting as well that the OSHA cases may feature the debut Supreme Court arguments for the current Ohio Solicitor General, Ben Flowers (representing the State challengers), and for Steven P. Lehotsky (representing the business associations) – both of whom clerked for the late Justice Antonin Scalia.  Today, the two filed an unopposed joint motion for divided argument.  In an interesting parallel, two advocates made their debut Supreme Court arguments in Overton Park.  Will these cases end up, like Overton Park, as staples of American law-school casebooks?  Combine the weightiness of the substantive legal issues with the nearly unprecedented procedural posture, and the chances seem decent.

Supreme Options for OSHA’s Vaccine-or-Test Mandate

In this post, we take a look at the options facing the U.S. Supreme Court as it considers the challengers’ various emergency applications for a stay, several of which were filed just hours after the Sixth Circuit dissolved the Fifth Circuit’s stay of the ETS this past Friday evening (December 17).  At this point, it looks likely the Supreme Court will not rule on the stay issue until early January.  Yesterday morning, Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS.  That is the same day that the Supreme Court gave the challengers in the CMS mandate case to respond to the Government’s own request to reinstate that mandate.  Having both cases briefed in parallel, when the underlying orders went opposite ways, likely means that the Supreme Court will not act until the stay issue is briefed—i.e., after December 30, though the court will almost certainly decide the issue before OSHA’s new January 10 compliance date.

Waiting until briefing is complete would also be consistent with the Court’s general avoidance of making early decisions in the various vaccine mandate cases, such as refusing to overturn the New York mandate.  It also gives the Supreme Court time to potentially issue an omnibus opinion addressing all of the vaccine-mandate issues currently before it.  As noted, those include the OSHA mandate and CMS mandate.  And those two mandates may soon be joined by the federal-contractor mandate after the Eleventh Circuit (also this past Friday evening) refused the DOJ’s request to stay a Georgia district court’s nationwide-injunction of that mandate.

That said, several of the challengers have asked for an administrative stay while the Court determines whether to grant a stay pending review.  And the Supreme Court has been increasingly willing to issue emergency stays over the past couple of years to decide important issues, even though it has been criticized for using its “shadow docket.” So it is by no means impossible the Court will act in the next week.  Employers are understandably worried about investing in compliance programs for a regulation that may be stayed early next year.

As for what the Court will ultimately do, the Supreme Court has already demonstrated its willingness to use its shadow docket to halt a significant pandemic-era federal policy.  That’s what the Supreme Court did very recently in Alabama Assoc’n of Realtors v. Dep’t of Health and Human Serv’s (2021), letting a district court vacate the CDC’s nationwide moratorium on evictions.  In that case, as in the consolidated OSHA cases, the challengers argued that a federal agency exceeded its lawful authority with a regulation it deemed “necessary to control the spread of COVID-19.”  In dissenting from the denial of initial hearing en banc at the Sixth Circuit, Chief Judge Sutton went out of his way to explain why OSHA should lose on the merits .   He enjoys some influence among the Supreme Court Justices, so his analysis may also weigh in favor of a stay.

It’s worth noting that the ETS challengers are also seeking certiorari before judgment, an unusual procedure that would have the challengers leapfrog further proceedings in the lower courts and go straight to the Supreme Court’s merits docket.  Although rarely invoked, the Supreme Court is more willing to consider and grant such requests than in years past.  It did so at least twice when the Trump Administration was blocked by federal courts from its attempts to rescind DACA, Trump v. NAACP (2020), and to add a citizenship question to the census, Dep’t of Comm. V. New York (2019).  And it did so more recently in the Texas abortion case, Whole Woman’s Health v. Jackson (2021).  This suggests that when confronted with exceptionally important, time-sensitive issues, the Supreme Court is more willing than ever to grant cert. before judgment.  No matter how the Supreme Court rules on the challengers’ stay motions, given the important, time-sensitive issues at play in the OSHA cases, the odds seem to slightly favor the Court granting cert. before judgment and hearing (and deciding) these cases on an expedited basis—though perhaps not fast enough for employers to avoid the costs of preparing to comply with the ETS.

ETS Developments in the Supreme Court — and more on the Sixth Circuit’s decision dissolving the stay

Before we dive in the panel’s opinions on the stay motion, we should mention that in the Supreme Court proceedings Justice Kavanaugh gave OSHA until December 30 to respond to the various emergency motions to stay enforcement of OSHA’s ETS mandate.  That is the same day that the Supreme Court gave the challengers in the CMS mandate case to respond to the Government’s own request to reinstate that mandate.  Our guess is that though the Supreme Court will almost certainly decide the case before OSHA’s new January 10 compliance date, it may not do so until after the issue is fully briefed.  Employers with more than 100 workers, of course, deserve an answer on this critical issue sooner rather than later.  Perhaps in recognition of the practical fact that the next step is up to the Supreme Court, the Sixth Circuit has not yet issued a schedule for merits briefing.

Back to Judge Stranch’s opinion that OSHA is likely to win on the merits, which was joined by Judge Gibbons.  The opinion focuses on the petitioners’ statutory attack, holding that OSHA is allowed to regulate “agents” which including anything that causes bodily harm and that the OSH Act’s objective includes exploring the “causal connections between diseases and work in environmental conditions.”  Pointing to Congressional direction to pass regulations to combat HIV and other bloodborne diseases, she concludes that “OSHA necessarily has the authority to regulate infectious diseases that are not unique to the workplace.”  She also holds that the “major questions” doctrine (which Judge Sutton referred to as the “clear statement” doctrine) is inapplicable because “OSHA’s issuance of the ETS is not an enormous expansion of its regulatory authority” as “OSHA has regulated workplace health and safety on a national scale since 1970, including controlling the spread of disease.”  She emphasizes again that the OSH Act confers authority to protect workplace health and safety, including the transmission of viruses.  She also criticizes federalism concerns are overblown because, while public health “traditionally been a primary concern of state and local officials,” the OSH Act shows that Congress decided “that the federal government would take the lead in regulating the field of occupational health.”

In response to arguments that the time for an “emergency” has passed, Judge Stranch notes that preventing a late-acting agency from correcting a problem only makes the problem worse, especially when traditional non-regulatory opinions prove inadequate.  The opinion also makes short work of the claim that OSHA must make specific findings regarding every type of workplace or worker, pointing to OSHA’s demonstration that the virus spreads easily in many indoor spaces among those vulnerable and less-vulnerable such that broad measures are necessary.  She also notes that the number of COVID-19 deaths in America has passed 800,000, and that working Americans have a “1-in-14 chance of hospitalization when infected”—and that OSHA estimates that the ETS will save “over 6,500 workers lives and prevent over 250,000 hospitalizations.”

The majority opinion rejects the criticisms levied by petitioners and the en banc dissenters that OSHA’s standard is over- and under-inclusive in scope.  Judge Stranch responds that the “practical reality” is that OSHA’s regulations are “sufficiently expansive to ensure protection to meaningfully curb transmission rates” while avoiding burdening smaller employers.  In the end, Judge Stranch finds that the ETS is good enough because it’s reasonable:  “larger employers are better able to implement the policies, are at heightened risk, and regulating them will be a significant step in protecting the entire workforce from COVID-19 transmission.”  The opinion spends little time on the constitutional challenges, unwilling to hold that the federal government lacks the ability to combat a pandemic and rejecting the non-delegation argument that Congress cannot authorize an agency to make such sweeping changes to American businesses.

Judge Gibbons’ concurrence states only that a court’s review of agency action is limited, so that while “[r]easonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policy-making responsibilities.”  In a significant dissent, which complements Judge Sutton’s analysis, Judge Larsen disagrees with the majority’s holding that the ETS was a reasonable response to the problem, providing the following analogy:  “To illustrate (without intending to trivialize) OSHA’s task, consider the danger from fire in a workplace: a pizzeria. One way to protect the workers would be to require all employees to wear oven mitts all the time—when taking phone orders, making deliveries, or pulling a pizza from the flames. That would be effective—no one would be burned—but no one could think such an approach necessary. What OSHA’s rule says is that vaccines or tests for nearly the whole American workforce will solve the problem; it does not explain why that solution is necessary.”  Judge Larsen does not address the constitutional issues.


The Sixth Circuit Vacates The Stay Of OSHA’s Mandate, But OSHA Delays Implementation Until January

As you probably know by now, the Sixth Circuit vacated the stay of OSHA’s vaccine mandate on Friday evening, allowing OSHA to move enforce its regulation, with an substantial, careful opinion by Judge Stranch (who was joined by Judge Gibbons) finding that OSHA has the statutory authority to issue and enforce the emergency temporary standard.  Judge Larsen, the third judge on the motions-turned-merits panel, dissented with another significant opinion.  We’ll follow up on Monday with more analysis of those opinions, and their potential impact on the Supreme Court.  Today, however, OSHA delayed implementation of the emergency temporary standard until January 10.  As a practical matter, lifting the stay only means that OSHA can use December to make preparations for implementing the ETS.

As expected, petitioners raced to filed emergency applications for a stay in the Supreme Court on Friday, with some also using the lesser-known procedure of a cert petition “before judgement.”  That’s often a tough sell, but everyone expects the Supreme Court to weigh in on this case sooner rather than later.  Justice Kavanaugh, as the relevant circuit justice, is currently weighing those emergency motions to stay, though he has the option to send the issue immediately to the full court.  OSHA’s decision to delay enforcement takes some of the urgency away from the issue, so hopefully the Justices can consider these issues carefully.

Chief Judge Sutton’s En Banc Dissent On The Merits Of OSHA’s Emergency Temporary Standard

We’ve previously discussed the procedural arguments for and against taking the case en banc that Judge Moore and Chief Judge Sutton (briefly) debated in their respective concurrence and dissent.  As we noted in our earlier post, the Court split evenly on the en-banc issue, keeping these cases with the current three-judge panel.  This post reviews Judge Sutton’s analysis (which was joined by seven other judges) of the merits issue at the center of all these cases:  whether OSHA exceeded its authority in promulgating the ETS.  Judge Sutton focuses his dissent on that issue, and it’s likely that his careful analysis will affect the panel’s review, and perhaps the Supreme Court’s likely review, of these cases going forward—whichever way they come out.

Judge Sutton argues that the clear-statement rule dooms OSHA’s ETS.  Under that rule, Congress must clearly delegate to OSHA the authority to issue an ETS.  He concludes that Congress did not clearly delegate that authority to OSHA in its enabling statue (the Occupational Safety and Health Act) or anywhere else.  Judge Sutton traces the lineage of the clear statement rule to two constitutional principles articulated in Supreme Court precedent.  The first principle is that Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.”  Util. Air Regul. Grp. V. EPA, 573 U.S. 302, 324 (2014).  The second is that Congress must “enact exceedingly clear language if it wishes to significantly alter the balance between federal and state power.” Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs, 141 S. Ct. 2485, 2489 (2021).  According to Judge Sutton, the clear statement rule must apply because OSHA’s ETS covers 80 million American workers and encroaches upon the States’ traditional police power.

Having found that the clear-statement rule applies here, Judge Sutton explains why he thinks Congress failed to supply that clear statement.  Analyzing the Occupational Safety and Health Act, he concludes that it addresses “only occupational health and safety risks,” like “a chemical used to make a plastic product or the heat generated at a steel foundry.”  It does not address “any risk facing the country and every citizen in it.”  This is true, as well, for the Act’s narrow emergency-rulemaking exception.  Judge Sutton reasons that the exception, like the Act’s other provisions, is directed only toward dangers arising out of work or work-related activities.  He also emphasizes the unprecedented nature of the vaccinate-or-test mandate, which he believes to be strong evidence Congress did not clearly delegate to OSHA the authority to promulgate the ETS.

Judge Sutton also points to OSHA’s failure to explain why the ETS was “indispensable” or “essential,” which he reasons is necessary for an emergency-rulemaking exception.  He also writes that any such explaining would likely fail considering all the other “less intrusive, more tailored” approaches the agency could have taken.  Nor, in Judge Sutton’s view, was the ETS directed toward a true “emergency,” as neither masking nor vaccination requirements are entirely new options available to the government.  He points out that the people with the most serious risk are generally not working and that risks faced by the vaccinated are far less serious (as OSHA concedes).  Perhaps more importantly, he notes that the actual “emergency” at this point is that part of the population willingly chooses to remain unvaccinated, despite the proven benefits of the vaccine.  In this respect, Judge Sutton also points out that vaccination is not “temporary.”

Having concluded that the challengers were likely to succeed on the merits, Judge Sutton quickly disposes of several of OSHA’s counterarguments, including that the Court must defer to OSHA under the doctrine of Chevron deference.  He points out that applying Chevron deference would mean that the most significant questions raised by expansive exercises of regulatory power could be insulated from judicial review.

Because Judge Sutton and his fellow dissenters would strike down the ETS on statutory principles, his opinion avoids opining on constitutional issues potentially presented by the ETS (as argued by many of the petitioners), such as whether Congress could issue a vaccine-or-test mandate under the Commerce Clause in the first place.  He also avoids addressing whether Congress has the power to delegate that authority to the Executive Branch.  (In his brief separate dissent, Judge Bush opines that Congress does not in fact have those powers).

Agree or disagree with his analysis, Judge Sutton’s thoughtful en banc dissent has emerged as perhaps the most powerful (and the most narrow) judicial opinion against OSHA’s ETS.  We will see what effect this has, if any, on the panel’s opinion.

The Sixth Circuit Denies En Banc Review In ETS Case With Two Merits Opinions

The Sixth Circuit has denied en banc review in the OSHA vaccine mandate cases.  The vote was a close one, with eight judges voting in favor of initial hearing en banc.  But that’s not enough under the circuit’s rules, which require a majority of the 16 active judges to vote for en banc treatment.  As a result, the current panel reviewing the case will decide whether to continue the stay issued by the Fifth Circuit, which may end up being the most consequential decision in the case until it comes before the Supreme Court.

Judge Moore wrote a short concurrence to the denial, arguing that there is no need to have all 16 active judges review the “massive docket and profusion of briefs” when “three thoughtful, independent judges” have already “spent the past weeks steeped in this matter.”  Judge Moore’s concurrence was joined by four other circuit judges.

Judge Sutton dissented in a 26-page opinion which was joined by seven judges.  All but one paragraph of that opinion deals with the merits of OSHA’s emergency rule, arguing that it exceeded the agency’s statutory authority.  We will discuss Judge Sutton’s opinion on the merits of the stay, and of OSHA’s ETS itself, in more detail in a further post.

As to the en banc motion, Judge Sutton explained that this is an “extraordinary case, suitable for an extraordinary procedure” and that there may be no opportunity for traditional en banc review afterwards as the stay motion will likely be “the key decision point,” and the six-month ETS ends on May 5, 2022.  More notably from a circuit-procedure perspective, he stated that an initial en banc motion gives judges “the option to offer their perspectives on the stay motion, in opinions concurring in the denial of initial hearing en banc or dissenting from it.”  His opinion on the merits of the ETS certainly takes advantage of that option.

Judge Bush wrote a separate dissent arguing that while Congress has authority (and often has acted) to encourage vaccinations, it lacks the constitutional authority to mandate vaccines for citizens with no special relationship to the federal government.

As for who is on the actual ETS panel (a subject of much speculation lately), we note that three judges did not join a concurrence or a dissent: Judge Griffin, Judge Gibbons, and Judge Stranch.  It’s not unreasonable to guess that at least two of them are likely on the panel that will decide the stay motion.  Whether they will decide the merits, however, will depend on when the Supreme Court takes the case.  If the panel reinstates the ETS, the Supreme Court might grant an emergency stay, and take over the case, before the panel can reach the merits (recall that Judge Kavanaugh is currently assigned to the Sixth Circuit).