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The pandemic is going to court.
President Joe Biden’s plan to get millions of American workers vaccinated has prompted a furious backlash from GOP governors, who say they’ll fight him even to the “gates of hell.”
The resulting legal battle could determine the future course of the pandemic—including how many Americans get sick, and where the country draws the line between individual decisions and public safety.
Biden’s plan involves ordering companies with 100 or more employees to make sure their staff are vaccinated or tested regularly for COVID, or else face a nearly $14,000 fine per violation. The rules would cover roughly two-thirds of the private sector workforce, or some 80 million people.
The details could be finalized as soon as next week, which means the legal rumble will kick off soon after.
Historically, courts have frequently upheld vaccine requirements. But that fact hasn’t stopped anyone from pursuing legal action to stop them.
Texas vs Biden
One tricky legal question for the courts to sort out: The looming clash between Biden’s national requirement and a ban on mandates that was just instituted by Republican Texas Governor Greg Abbott.
The Texas rule seemingly forbids private companies from forcing their employees to take the exact kind of safety precautions that Biden’s federal requirement would demand.
“No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19,” Abbott’s order says.
Failure to comply with the Texas order can result in a $1,000 fine.
Legal experts say the Texas rule will likely be superseded by the national requirement, because a long history suggests that federal rules take precedence over the states.
But until that’s settled, the result may be chaos.
"Companies recognize they have to comply with one or the other but not both, and the Texas order is more likely to be struck down than the federal order," Steve Cave, a King & Spalding attorney specializing in government contracts, told the Reuters news agency.
Legal experts and historians point out that vaccine mandates aren’t unconstitutional. They’ve been around as long as the republic: George Washington ordered mandatory smallpox inoculation for the Continental Army in 1777—and faced intense objections.
The Supreme Court upheld state-level vaccine mandates twice, in 1905 and 1922. Back then, cops in New York and Boston were literally conducting nighttime raids on tenements and holding people down while vaccinators stuck needles in their arms. Today, every single state in the U.S. mandates vaccines for school children.
But despite all this history, there’s a lot that is brand new about Biden’s move.
For starters, the established mandates upheld by the Supreme Court were state mandates, not federal rules. And Biden’s order is being implemented by a federal agency called the Occupational Safety and Health Administration, or OSHA, which has never done anything exactly like this before.
OSHA’s job is supposed to be making sure people have a safe place to work, which is why Biden’s team argues the agency has the power to demand employers institute COVID safety measures.
Still, OSHA typically takes years to develop rules and order companies to implement such rules. And Biden ordered OSHA to move much faster than it normally does by issuing an Emergency Temporary Standard—a maneuver with its own rocky history.
Before the coronavirus pandemic, the agency had only issued such an emergency standard nine times. Five of those were successfully challenged in court, wholly or partially, including the most recent one which occurred almost four decades ago, in 1983.
That means there is at least a question about whether the 1970 law that established OSHA really gives Biden the power to make this move. That raises perhaps Biden’s biggest problem: The court that will get the final say is dominated by conservatives, including Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Amy Coney Barrett, the three Justices installed by former President Donald Trump.
And the high court’s conservative majority means that no outcome is certain.