Ten is the Loneliest Number

Published December 28, 2021

The Supreme Court has agreed to hear two cases that deal with vaccine mandates. Oral arguments will be held on January 7, 2022. The cases respectively deal with (a) the mandate adopted by means of an Emergency Temporary Standard (an ETS) issued by the Occupational Health and Safety Administration (OSHA) at the direction of President Biden and (b) the mandate adopted by regulation by the Center for Medicare and Medicaid Services (CMS) that is directed at health care workers at facilities that receive Medicare or Medicaid funds.

The ETS adopted by OSHA covers all “covered employers,” defined as employers having 100 or more employees, (with limited exceptions for employers not under the jurisdiction of OHSA) and it requires covered employers “to develop, implement and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.” There is no provision for employers or employees to be exempt based on religious grounds or medical concerns. The OSHA mandate was enjoined by the 5th Circuit Court of Appeals and that injunction was lifted by the 6th Circuit Court of Appeals.

The CMS regulation (the CMS Healthcare Workers Mandate) required that all covered health care employees receive their first vaccine shot by December 6, 2021 and that they be fully vaccinated by February 4, 2022. This mandate has been temporarily suspended as a result of injunctions issued by the District Court for the Eastern District of Missouri and the District Court for the Western District of Louisiana. These Courts agreed that Congress would need to enact or explicitly give the Department of Health and Human Services the authority to implement and enforce such a widespread COVID-19 vaccine mandate.

Note that both of these mandates were issued by agencies that are part of the Executive branch of the Federal Government and the injunctions issued against each of them were based on the scope of authority of the Executive and whether the agencies were acting in a manner not provided by Congress. In the case of the OSHA mandate, OSHA was purporting to act under the Occupational Health and Safety Act of 1970 which was adopted to assure safe and healthful working conditions for the nation’s workforce and to preserve the nation’s human resources. In the case of the CMS Healthcare Workers Mandate, CMS was purporting to act under the Medicare Improvements for Patients and Providers Act of 2008.

Th constitutionality of these mandates depends on whether the Federal government has the power to issue mandates concerning the health and safety generally of people residing in the US and, if it does, can these mandates be adopted by Executive action without authorization by Congress. The issue in the two cases being heard by the Supreme Court is not whether any State or municipality has the constitutional authority to issue such mandates or, if the States and municipalities have such authority, what is the scope of that authority.

As to the first part of the constitutional question concerning Federal government authority, this is where the 10th Amendment becomes relevant. The 10th Amendment is the least cited of the 10 Amendments that make up the Bill of Rights and is often called the “Lonely Amendment” However, it is at the heart of Federalism.

The 10th Amendment to the Constitution provides that: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This Amendment is generally understood to reserve police powers to the States. There is no delegation of police power to the US Government except with respect of the District of Columbia and other Federal land (i.e., land owned by the US government or on Indian reservations.

Why is that relevant? Enacting and enforcing mandates or any other policy for purposes of protecting health and safety is the exercise of a police power. In the case of the CMS Healthcare Workers Mandate, CMS asserts that limited police power in the Federal government was created by the fact that healthcare facilities receive Medicare and Medicaid funds from the Federal government. CMS also asserts, in the alternative, that its authority to condition the receipt of Medicare and Medicaid funds and the Healthcare Workers Mandate merely creates a condition to the receipt of Medicare and Medicaid fund.

The second reason the 10th Amendment is relevant is that the Supreme Court case cited by those who claim that these mandates are constitutional -Jacobson v Massachusetts, 197 US 11 (1905) –  dealt with a vaccine mandate adopted by the city of Cambridge, Massachusetts, under authority granted it by the State of Massachusetts. Neither the OSHA mandate nor the CMS mandate was issued by a State or municipality.

The leading case dealing with the application of the 10th Amendment is Printz v United States, 117 S.Ct. 2365 (1967), in which the Court, dealing with the Brady Handgun Violence Prevention Act. That required the chief law enforcement officer in every State to conduct such checks of persons applying for a license to own or possess a gun and perform tasks on an interim basis until the national system of collecting data on gun ownership became operative and the data could be kept in a national system. The Court said: “Because there is no constitutional text speaking to the precise question whether compelling state officers to execute federal laws is unconstitutional, the answer to the CLEO’s [chief law enforcement officers] must be sought in historical understanding and practice, in the Constitution’s structure and in this Court’s jurisdiction.”

The Jacobson v Massachusetts case dealt with a gentleman named Henning Jacobson who was born in Sweden and emigrated to the US where he became a US citizen. Mr. Jacobsen and his son had previously had severe negative reactions to vaccines and he did not want the risk of the vaccine for smallpox, which the City of Cambridge Board of Health was mandating that all residents of Cambridge receive. As a result of his refusal to take the smallpox vaccine, Mr. Jacobson was fined $5. (The amount is an indication of how much the value of the dollar has declined since 1905.) Mr. Jacobson was backed by The Anti-Vaccination Society.

In upholding the Cambridge mandate, Chief Justice John Marshall Harlan wrote: “In every well-ordered society charged with the duty of conserving the safety of its members, the right of the individual in respect of his liberty may at times, under the pressure of great dangers, be subject to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand… On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy.”

However, the Court held that the authority of the State and its municipalities was not unlimited. The Court said: “The police power of the State, whether exercised by the legislature, or a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” If a person could demonstrate that a vaccine might impair his health or cause death, the State and its municipalities could not mandate that such person take a vaccine.”

Jacobson has been followed in numerous cases. For example, in the case of Zucht v King, 208 US 174 (1922), Justice Louis Brandeis said: “Jacobson settled that it is within the police power of a State to provide for compulsory vaccination.”

So where does this history leave us? It is doubtful that the Federal government has the power to adopt and enforce the ETA issued by OSHA. It is also likely that the Federal government has no power to impose the CMA Healthcare Worker Mandate unless the Supreme Court considers that CMS has unlimited authority to exercise police power masquerading as a condition to the receipt of Medicare and Medicaid funds.

What might constrain the Supreme Court from reaching this result? If the Federal Government does not have the police power to regulate the health and safety of US residents generally and that police power resides in the States, then it raises the question whether any workplace regulations issued by OSHA are constitutional. The 6th Circuit Court of Appeals, in lifting the stay against enforcing the OSHA ETA, did not address that issue and instead addressed the questions of whether there is an “emergency” and whether the procedural requirements in adopting the OSHA ETA were met.

The Supreme Court could follow the approach of the 6th Circuit Court of Appeals but not the result and hold that the OSHA ETA is invalid because there is not an “emergency,” or the procedures for adopting the OSHA ETA were not properly satisfied and thereby avoid the 10th Amendment issue and the question of where the police power to issue health orders and rule resides. That would be a mistake. We need a clear and strong ruling affirming the police power of the States.