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Pandemic Precedents Cast Shadow on Biden Shot-or-Test Rule

Dec. 8, 2021, 11:05 AM

The Cincinnati-based federal appeals court handling the legal challenge to the Biden administration’s shot-or-test regulation has ruled against other government responses to the coronavirus pandemic in decisions that don’t bode well for the emergency measure’s survival.

The U.S. Court of Appeals for the Sixth Circuit—a court dominated by Republican-appointed judges that will review the emergency standard after winning a multi-circuit lottery—previously has nixed the federal government’s eviction moratorium and two Kentucky restrictions on religious services. The circuit was out ahead of the conservative-majority U.S. Supreme Court and other federal courts on those issues.

“This court has been very skeptical, if not hostile, to pandemic-mitigation measures, in quite marked distinction from its sister circuits,” said Wendy Parmet, a law professor who directs Northeastern University’s Center for Health Policy and Law. “It’s striking that it started very early, before the political polarization around the pandemic had gotten as hardened as it is today.”

The Sixth Circuit’s decision on the measure won’t be determined by binding precedent, so the court’s earlier decisions on pandemic responses provide clues about how its judges might approach analyzing the rule, as well as their attitudes about the hazard posed by Covid-19 and the need for government intervention.

The Occupational Safety and Health Administration finalized its emergency standard last month, which it issued under its power to set temporary regulations necessary to address workplace hazards that present a “grave danger.” The rule, which is set to expire in May 2022 in its current form, applies to employers with at least 100 workers.

An all-Republican three-judge Fifth Circuit panel blocked the rule a day after OSHA published it, calling it unlawful and probably unconstitutional in a subsequent opinion. Following the multi-circuit lottery, the Biden administration asked the Sixth Circuit to lift that stay order.

GOP-appointed judges on the Sixth Circuit outnumber jurists tapped by Democratic presidents by a 20 to eight margin, including an 11 to five edge among active-status judges. But in practical terms, the GOP advantage is more like 19-9 circuit-wide and 10-6 among active judges. Judge Helen White was nominated by a Democratic president before she was stonewalled by the Senate, renominated by a Republican president, and finally confirmed.

Party Matters

The partisan breakdown of the judges who hear the case likely will be an important factor in whether the rule survives, given the political differences in views on the severity of the pandemic, the importance of vaccine mandates, and the proper scope of administrative agency power, legal observers said.

There’s evidence of partisan differences in how the Sixth Circuit has handled previous government pandemic-response measures.

That court, for example, has tossed a challenge to a Michigan restriction on travel, and refused to block a Kentucky school closure order and a Michigan mask mandate.

But the three-judge panels in those cases had either a majority of Democratic-appointed judges or had one Democrat appointee and Judge White. The full complement of active-status judges also have agreed to reconsider a three-judge panel’s ruling in the Michigan mask mandate decision in what’s known as “en banc” review.

The Sixth Circuit is weighing requests to break with normal order and take up the OSHA shot-or-test rule en banc from the start, rather than letting a three-judge panel handle it.

VIDEO: President Biden’s vaccine mandate rule for companies, the likely legal challenges and what to expect next.

Eviction Moratorium

An all-Republican three-judge panel ruled against the Centers for Disease Control and Prevention’s eviction moratorium twice in Tiger Lily v. HUD. The Sixth Circuit panel blocked the CDC program in March and struck it down in July. The Supreme Court had allowed the program to continue in June before nixing it in August.

The Tiger Lily decision and the high court’s later ruling on the eviction moratorium have the most overlap with the challenge to the OSHA emergency rule “and neither one of those bodes well for the Biden administration,” said Mark Brown, a law professor at Capital University Law School who has litigated pandemic-related issues at the Sixth Circuit.

The case shows that the judges will examine the language of the Occupational Safety and Health Act closely to mull whether OSHA could issue the emergency rule, legal scholars said.

One tea leaf for predicting how the Sixth Circuit might view OSHA’s statutory power comes from the Tiger Lily panel’s choice to narrowly read the CDC’s authority to prevent the transmission of diseases, said Ana Santos Rutschman, a law professor at the University of St. Louis. The court used that narrow reading despite the Public Health Act allowing for “other measures” aside from a handful of specific methods listed in the law, she said.

But Rutschman and other legal scholars noted that OSHA has a stronger argument for its emergency temporary rule than the CDC had for the eviction moratorium.

Worshiping During Pandemic

A different Sixth Circuit panel of three GOP judges blocked two Kentucky restrictions on religious gatherings in separate May 2020 rulings: one in Maryville Baptist Church v. Beshear regarding drive-in services; and another in Roberts v. Neace, which dealt with in-person gatherings.

Although distinct from the agency authority issues at play in Tiger Lily and the shot-or-test rule case, the decisions show how the Sixth Circuit has moved boldly against pandemic restrictions.

The Supreme Court, which refused to block pandemic limits on houses of worship until November 2020, has cited the Sixth Circuit’s Neace ruling in four decisions.

The high court cited Neace when it blocked California’s limitations on gatherings in its April ruling in Tandon v. Newsom, which said government regulations aren’t neutral “whenever they treat any comparable secular activity more favorably than religious exercise.” That notion—called “most favored nation status” by some legal observers—represents an apparent expansion of religious liberty.

The language in the Maryville Baptist Church and Neace opinions also signals a suspicion of deferring to public health experts or government officials during the pandemic, said Parmet, the Northeastern University professor.

“While the law may take periodic naps during a pandemic,” the Sixth Circuit said in both rulings, “we will not let it sleep through one.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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