After facilitating Donald Trump’s agenda for four years, the 5th U.S Circuit Court of Appeals has declared war on Joe Biden. This war reached a new low on Friday night when a three-judge panel explained why it had blocked the proposed employer vaccine mandate nearly a week before. The panel’s opinion is a partisan screed against the Biden administration that disparages the mandate as a political ploy. It cavalierly downplays the threat of COVID, verging on Fox News–style denialism. And it presents a series of radical claims about federal power that would, if adopted, imperil vast swaths of statutes and regulations that govern everyday American life. Ultimately, the 5th Circuit has seized upon the vaccine mandate as a tool to upend nearly a century of constitutional law.
If you’re skeptical that an appeals court could veer so far to the far-right fringe, let me remind you that Trump stacked the 5th Circuit with six judges. All six are Federalist Society stalwarts who are eager to lead a conservative revolution against progressive precedents and Democratic presidents. Two of these judges, Kurt Engelhardt and Stuart Kyle Duncan, sat on the panel that halted the mandate. Engelhardt is best known for attempting to destroy Obamacare (and getting shot down at the Supreme Court). Duncan is best known for intentionally misgendering a trans litigant. The third member of the panel, Edith Jones, is a Ronald Reagan nominee with a long history of brazen partisanship and alleged racism. Opponents of the vaccine mandate—a group of states, employers, religious groups, and individuals—could not have asked for a more sympathetic trio.
The panel started with the premise that Biden had an ulterior motive for supporting a workplace vaccine mandate. Engelhardt, who authored the majority opinion, repeatedly implied that the president’s true aim was not to fight COVID but to meet his vaccination targets so he could tout a political victory. The mandate, Engelhardt wrote, was unveiled “after the President voiced his displeasure with the country’s vaccination rate in September.” He cited Biden’s statement that “our patience is wearing thin” and quoted a CNN article that noted the president’s “hardening” tone toward unvaccinated Americans.
Engelhardt then claimed that the Biden administration “pored over the U.S. Code in search of authority” for a mandate. In his telling, the administration “landed on” the Occupational Safety and Health Administration’s power to issue an “emergency temporary standard,” or ETS, protecting workplace safety. OSHA then issued an ETS requiring that companies with at least 100 employees give workers two options: get the shot or undergo weekly testing.
According to Engelhardt, OSHA’s stated justification for the ETS—reducing the spread of COVID—was “pretextual.” Its real justification was the White House’s desire to boost vaccination rates and secure better publicity. Engelhardt’s lone evidence for this claim is the fact that Ron Klain, the White House chief of staff, “retweeted MSNBC anchor Stephanie Ruhle’s tweet” that described an employer mandate as “the ultimate work-around.” (How this retweet proves the “pretextual” basis of the ETS is a mystery left for readers to solve.) Engelhardt concluded that the mandate’s “true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”
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After suggesting that Biden’s political desperation, rather than genuine public health concerns, motivated the ETS, Engelhardt pivoted to a new argument: COVID just isn’t all that serious. He pointedly described COVID as “a purported ‘emergency’ ” (with scare quotes). He then wrote that OSHA’s “failure to act promptly” may demonstrate that “is not a true emergency.” Time and again, Engelhardt waved away the danger of the virus, focusing exclusively on the interests of individuals, companies, and states that resist vaccination. You will not find a single sentence in the opinion that begins to capture the full tragedy of a pandemic that has killed more than 760,000 Americans. And you certainly won’t see any consideration of employers and employees who want their workforce to be vaccinated to reduce their own risk of infection. You will, however, find bottomless empathy toward anti-vaxxers.
This dismissive attitude toward COVID reached a zenith when Engelhardt asked whether “the public interest” favored a stay. He did not even consider whether the public would benefit from the mandate, or acknowledge the prevention of death and disease as a public interest. Instead, Engelhardt focused solely on three factors: the alleged “economic upheaval” caused by “the mere specter” of the ETS; its threat to “our constitutional structure”; and the importance of “maintaining the liberty of individuals to make intensely personal decisions according to their own convictions.” The public’s interest in stopping COVID was disregarded entirely. (Engelhardt recently voted to keep Texas’ six-week abortion ban in effect; his deference toward “intensely personal decisions” appears to turn on his approval of those decisions.)
Although he spilled much ink complaining that the Biden administration exceeded its authority, Engelhardt revealed toward the end of his opinion that none of this analysis really mattered. Why? Because even if Congress gave the executive branch power to impose vaccine mandates, the law would be unconstitutional under the nondelegation doctrine. This theory, which has no basis in the Constitution, prevents Congress from delegating too much power to executive agencies. The Supreme Court has used it twice, both times in 1935 to hobble New Deal legislation. If revived, this doctrine would bring much of government to a screeching halt, hobbling thousands of critical federal regulations on everything from the environment, health care, employment, education, immigration, and more.
Some conservative justices are keen to bring the doctrine back. And Engelhardt is squarely in their corner. If Congress “intended to authorize a workplace safety administration in the deep recesses of the federal bureaucracy to make sweeping pronouncements on matters of public health affecting every member of society in the profoundest of ways,” he wrote, it would likely run afoul of the Constitution. This logic, if embraced by the Supreme Court, would permanently destabilize the “administrative state” that keeps the government running.
So a law giving OSHA discretion to require vaccines would be unconstitutional. But what if Congress itself explicitly imposed a mandate on employers? That, too, would be unconstitutional, Engelhardt proclaimed. “A person’s choice to remain unvaccinated and forgo regular testing is noneconomic inactivity,” he wrote. And in the first Obamacare decision, the Supreme Court held that Congress may not regulate “noneconomic inactivity that falls squarely within the States’ police power.” In this light, even a congressionally authorized mandate “would far exceed current constitutional authority.”
Engelhardt could only reach this conclusion by eliding a key distinction between Obamacare’s individual mandate and Biden’s ETS: The Obamacare mandate applied to individuals, while the ETS applies to businesses that are already engaged in commercial activity. In fact, it only applies to companies with 100 or more employees—all of which are certain to have a connection to interstate commerce. Congress is already regulating these businesses in myriad ways, and the ETS simply adds one more requirement. It is fundamentally distinct from a general mandate that individual Americans buy health insurance.
What happens if the Supreme Court endorsed Engelhardt’s warped version of “noneconomic inactivity”? Under his test, a huge amount of currently regulated activity could be reframed as “inactivity” beyond Congress’ purview. For instance: When a manager refuses to stop pervasive racial discrimination in their workplace, that’s “inactivity.” When a power plant refuses to install new technology limiting emissions, that’s “inactivity.” When firearm dealers decline to implement new safeguards against illegal purchases, that’s “inactivity.” Once the distinction between individuals and commercial enterprises gets tossed out, there is no limiting principle. Conservative judges could strike down an endless array of laws by recasting them as regulations on “inactivity.”
Engelhardt’s opinion is not just another 5th Circuit broadside against Democrats. It is a shot across the bow. The court made it plain that it will deploy every tool at its disposal to combat Democratic policies. It will box in Biden by accusing him of lying, of cutting corners, of exceeding his authority. And if Biden’s plans win legislative approval, the court will box in Congress, too. No matter how closely Democrats adhere to the rules, the 5th Circuit can always invent a new reason to shoot them down.
The good news is that the 5th Circuit’s opinion may soon become totally irrelevant. A quirk in federal law requires the judiciary to consolidate all challenges to an ETS in one circuit. On Tuesday, a lottery will determine which circuit will hear these cases. Since challenges have been filed in all but two circuits, the odds of the 5th Circuit prevailing are low.
Then again, even if another court upholds the ETS, the Supreme Court will ultimately decide its fate on the shadow docket. Engelhardt seems to believe that the conservative justices are ready to exploit this case to destroy both the administrative state and Congress’ ability to regulate commerce. He may well have overestimated their willingness to leap into this particular abyss. If he’s right, though, Democrats will face an existential threat to their agenda that will persist long after the COVID crisis has passed.
