Mandatory Covid mandates: US Supreme Court speaks

Mandatory Covid mandates: US Supreme Court speaks

The question of employers imposing mandatory Covid-19 mandates is very topical right now. Typically, employers take the stance that because they are necessary for occupational health and safety reasons, it is their duty to impose these mandates. Spreading around the world, this notion has also reached South Africa.

US President Joe Biden, Speaker of the House Nancy Pelosi, and White House adviser on communicable diseases Anthony Fauchi are all on record highlighting the voluntary nature of vaccine mandates, but the reality changed when President Biden started to champion the introduction of mandatory vaccines.

The Occupational Safety and Health Agency (OSHA) essentially imposed compulsory vaccinations on the US workforce but after this directive was granted, legal objections were unsurprisingly raised and a court application was made to stay its introduction.

The stay was first granted, then overturned, before being taken to the US Supreme Court, which then had to decide whether or not the stay should be enforced; the question before the court was not the mandate itself. The Supreme Court consists of nine judges: Chief Justice John Roberts and eight associate justices. In recent years it has become increasingly politicised, and the Democrats are currently considering increasing the number of judges (packing the court).

The legal issue here is quite simple: the Secretary of Labour, acting through OSHA, enacted a vaccine mandate for much of the US workforce (the equivalent in South Africa would probably be the Minister of Labour-issued regulations). But the US has a federal system in which powers reside with individual states unless granted to the federal government. In this case, the federal government is purporting to legislate for the entire country, so it is not surprising that a number of parties – including many states – raised objections.

There are a number of possible ways to approach the issue. The most direct is to argue that OSHA exceeded its statutory authority, and that the enactment of its directive falls outside of the empowering legislation. A second approach would be to argue that the mandate was not binding at a state level, since this is a state rather than a federal matter. Alternatively, one could argue that the mandate was unconstitutional. The Supreme Court took the first approach.

The main judgement was issued per curiam (i.e., by the court or on behalf of the court). British and South African lawyers are probably more used to the names of judges who agreed being listed to give a concurring judgement and a dissenting judgement. One would thus rationally expect the judgement to be issued per curiam if it was unanimous. It seems Chief Justice Roberts agreed with the main judgement.

Thus, constitutionality was not the central issue, but rather whether the legislature does grant general powers to an agency and if so, how broad are these powers? Specifically, in this case, are they broad enough to cover a vaccine mandate?

A few years back Lord Hoffmann succinctly  answered this question in the UK House of Lords in the case of Home Secretary v Simms: “Fundamental rights cannot be overridden by general or ambiguous words.” So, to apply this point of law, if parliament wished to impose a vaccine mandate it would have to pass a law doing exactly that. A vague general law would not be interpreted to impose a mandate. Lord Hoffmann was born in Cape Town, South Africa, and went to Stellenbosch University. His textbook on the law of evidence is the leading South African textbook on this subject.

The US Supreme Court approached the matter in much the same way: (1) did the agency have the authority under the law to impose mandates, and (2) did the federal government via OSHA have the authority to impose mandates, or does this authority reside with the states?

The first question is straightforward. Had the US Congress imposed the mandate via a law passed by Congress itself, this argument would not arise. The court pointed out that Congress had not passed a law imposing the mandate, despite having passed several pieces of legislation dealing with Covid. The court also pointed out that OSHA, which was formed in 1970, had never before imposed such a mandate. The mandate – if it existed – would apply countrywide, but no clear authority exists in law to impose such a mandate; it would have to be inferred from the general power granted to OSHA.

The US Supreme Court stated the position as follows: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Clearly, a nationwide mandate was just such a power of vast economic and potential significance and, since no such authority exists, OSHA had no authority to impose the mandate.

Furthermore, OSHA had the power to regulate occupational safety to protect employees. Covid was much further reaching than a mere employment situation, further indicating that OSHA was exceeding its authority. OSHA was introducing general public health provisions, not occupational health provisions. The court noted that “(permitting) OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the job — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” and that “imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not part of what the agency was built for”. A concurring opinion was written by Justice Gorsuch and supported by Justices Thomas and Altio, while 27 states joined the case to oppose the mandate.

The attention of the court then moved to whether or not legislation was a federal or state matter, following the same line of argument as the main judgement, but with a federal-state focus. The judge pointed out that OHSA “itself explained to a federal court less than two years ago, the statute does ‘not authorize OSHA to issue sweeping health standards’ that affect workers’ lives outside the workplace”.

The judge further noted that in the current situation, “that is precisely what the agency seeks to do – regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace. Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers”.

The judge concluded that if the matter needed to be dealt with, then: “Under the law, as it stands today, that power rests with the states and Congress, not OSHA.” The general law to regulate occupational safety does not, therefore, include the power to impose vaccines.

Three judges delivered a dissenting judgement. At the heart of the case is a simple issue: does society operate in terms of the rule of law or rule by government? The position of the majority is that if a mandatory vaccine is to be imposed it requires a specific law to be passed. In terms of the minority, if the legislator is not involved then a government agency can decide. In a constitutional democracy, even if the legislator decided to make vaccines mandatory, it would still be necessary to test that law against the constitution.

Published by

Professor Robert W Vivian and Dr Albert Mushai

Legally Speaking is a regular column by Professor Robert W Vivian and Dr Albert Mushai, both in the School of Economics and Business Sciences, University of the Witwatersrand. Vivian is a leading authority on insurance and risk management. He has written a number of books on South Africa’s business history. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining the University of the Witwatersrand as a lecturer in insurance.
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