The heated rhetoric surrounding Friday’s oral arguments before the U.S. Supreme Court regarding Biden administration COVID-19 vaccine mandates may have tended toward individual freedom versus the police state, but the legal arguments are more nuanced, a Tulsa labor lawyer said Friday.
They center not so much on whether the federal government can order vaccination to counter a public health emergency, said Madalene Witterholt, as on whether a president can bypass the usual rule-making process to do so.
“We have three branches of government,” Witterholt said. “In a situation like this, the question becomes, ‘Who can boss around the others? What are the rules?’”
Power and politics, she said, are often entwined with courts’ legal reasoning.
The precedent for requiring vaccinations during epidemics is well-established. In 1905, the U.S. Supreme Court upheld a Massachusetts law requiring smallpox vaccinations, even for individuals who reported previous adverse reactions.
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“Personal freedom,” said Witterholt, “tends to get pushed down by public health.”
But there are a couple of important differences between the 1905 case and the two being considered today.
One, the Massachusetts law was passed by a state Legislature, not handed down by a governor or state agency.
Secondly, the 1905 ruling dealt specifically with states mandating vaccinations. It did not address federal regulations.
The Biden mandates were issued by two federal agencies under provisions that allow the temporary bypassing of the regular rule-making process during emergencies. So a good deal of the legal argument rests on whether the COVID-19 epidemic, which has killed more than 835,000 Americans and hospitalized millions over a two-year period, constitutes an emergency.
“It’s something like war powers,” said Witterholt.
Although Oklahoma did not participate directly in Friday’s arguments, it did have a stake in them. Oklahoma was one of many states suing to block the two mandates, one of which would apply to all private employers with at least 100 workers and the other to health care workers.
First District Congressman Kevin Hern and U.S. Sen. James Lankford both issued statements calling for the regulations to be overturned, and the Oklahoma Attorney General’s Office issued a press release headed “Supreme Court Hears Oral Arguments in Attorney General John O’Connor’s Effort to Block Vaccine Mandate.”
In truth, just about every Republican attorney general in the country could have issued more or less the same statement, but the actual arguments were by a handful of attorneys, including one representing business interests, and their arguments had a lot to do with money.
Witterholt said all employers are bound by the General Duty Clause of the Occupational Safety and Health Act of 1970, which says they must provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
In effect, the Biden administration is arguing that COVID-19, and by extension unvaccinated employees, constitute such a hazard.
Witterholt said employers are resisting that designation because it means more potential responsibilities and costs for them.
“They may have to pay for vaccinations,” she said. “They may have to pay for tests. They may have to pay (employees) to be tested.”
But if COVID-19 in the workplace is a hazard — and it seems every epidemiologist believes it is — why is requiring a vaccination different from requiring dust masks or eye protection in certain settings?
“You could think it’s the same thing,” said Witterholt. “And it could be that it is the same thing. But ultimately, (lawmakers) have to do some things to authorize it.”
Featured video: Supreme Court holds hearing on Biden’s vaccine mandates
The Supreme Court hears cases on President Biden’s coronavirus vaccine mandates that affect health-care workers and private businesses.
