Person filling syringe from vial.

The Beginning of the End of Federalism

By Jennifer Bard

Friday’s emergency hearing by the Supreme Court regarding the Occupational Safety and Health Administration’s (OSHA) vaccine-or-test mandate was extraordinary both in that it happened at all and what took place.

The hearing came in a response to a petition by a coalition of states and the National Federation of Independent Business (NFIB) to halt an Emergency Temporary Standard (ETS) issued by OSHA mandating that all employers with over 100 employees “establish minimum vaccination standards” including “vaccination verification, face covering, and testing requirements.”

That the Court heard the case on an emergency basis signaled their concern that OSHA, in issuing the ETS, was overreaching its authority, as they ruled the Centers for Disease Control and Prevention had done in issuing an eviction moratorium.

But what made the colloquies particularly unsettling is that the ETS was carefully crafted to be, as Professors Larry Gostin and Dorit Rubinstein Reiss explain lucidly, well within contemporary standards for an exercise of federal power affecting a health matter usually within the jurisdiction of a state. It applies only to employers already obligated to follow OSHA workplace standards and fell far short of a vaccine mandate. Moreover, however severe the risk of COVID when this was drafted six months ago, the risk from the Omicron variant is many times greater.

Yet the sympathetic ear given by the majority of the Justices to the arguments made by the lawyers seeking a stay made it possible to wonder if the whole thing was happening in either one of DC or the MCU’s multiverse. This is because the questioning, directly and by implication, calls into doubt what past Courts have identified as the framework of federalism — a nickname for the Constitution’s balancing of a strong federal government against the rights of individual states. We cannot know the extent to which the Justices will adopt any of the arguments offered them for limiting federal agency power, but from this hearing we can anticipate substantial strengthening of an individual state’s ability to resist federal regulation.

What Makes a Law Unconstitutional

Under the current understanding of federalism, there are three fundamental reasons why a federal law might violate the provisions of the U.S. Constitution:

  • It exceeds the authority of the federal government to infringe on the power of the individual states.
  • It exceeds the authority granted by Congress to a specific federal agency.
  • It violates the rights of an individual impacted by the action.

Exceeding the Authority of the Federal Government

The balance of power between the individual states and the federal government created at the ratification of the current constitution in 1787 is maintained by limiting the power of both the president and Congress.

The 10th Amendment to the Constitution, which was ratified shortly afterwards, clarified these limits by stating directly that states retained all powers except those relinquished to the federal government specifically in “enumerated” provisions of that document.

One of those enumerated powers reflected the most pressing need for a shift away from individual state authority: Article I, Section 8, clause 3, the Commerce Clause, gives Congress the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” While in its most basic terms the Commerce Clause prohibits states from charging tariffs for transporting goods across state lines, it has also routinely been invoked to permit the creation of federal agencies that regulate air pollution, prescription drugs, cosmetics, crops, highways, railroads, and airlines.

Starting in 1995, however, the Supreme Court began limiting Congress’ power under the Commerce Clause by striking down a series of federal laws that it found to infringe on a state’s own power to regulate health and safety matters within its borders without sufficient justification of a superseding burden on interstate commerce. Over time, those members of the Supreme Court who are now in the majority developed a doctrine highly critical of federal action that sought to unduly “commandeer” state action by requiring states to pass legislation implementing federal policies.

But, so far, concerns over “commandeering” have been restricted to instances where the federal government required state action, not where it regulated individual activity over which it had authority because of the potential impact on interstate commerce.

The Court itself made this distinction recently in Murphy v. NCAA, where it upheld Congress’ right to prohibit sports betting, but not to require individual states to do so.

In particular, the Court distinguished between a valid exercise of federal power that conflicted with a state law, thus making the state law invalid under the Constitution’s Supremacy law, and an invalid exercise of federal power, which a state was free to reject by passing its own, contrary, law.

So, how does the OSHA standard fit into all of this?

Many of the Justices were struck by the words of a news anchor retweeted by President Biden’s Chief of Staff, Ron Klain, that “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”

But while the phrase “work around” sounds bad, the ability of the federal government to regulate acts of private individuals which impact interstate commerce is at the heart of the power sharing arrangement adopted by the drafters of our current Constitution after the failure of an earlier structure that allowed individual state interests to outweigh those of the country as a whole.

Since OSHA’s ETS applies only to private employers and requires no action by the states in which they work, the only reason to be concerned about it is if the ETS exceeds federal power.

Exceeding the Authority Granted OSHA by Congress

Federal agencies are the creation of Congress. OSHA is one of several agencies, including EEOC and the Department of Justice, that regulate the conduct of employers in both public and private workplaces. Subject-matter experts at the agency design rules to implement Congress’ intent, and the agency then enforces these statutory mandates.

The agency’s rules set standards for implementing constitutionally granted protections against discrimination based on factors such as race and religion, as well as protection against forms of discrimination based on age, sex, disability, and genetics, which are not established in the U.S. Constitution. While states where individuals work may provide individual protections beyond those mandated by Congress and administered by the relevant agencies, creating additional obligations on employers, no state can offer less.

Acknowledging that it would be unlikely for the Supreme Court, in an emergency hearing, to overturn the federal government’s ability to regulate workplace health and safety, the litigants argued that OSHA had exceeded the authority it had been given by Congress.

If true, this would make the ETS automatically invalid.

It is no secret that this Supreme Court is uncomfortable with agencies exercising authority in matters “of major political and economic significance” and that we are likely to hear quite a bit from them about the “Major Questions Doctrine” over the next several years. However, the arguments offered for overreach would, if accepted, set such a high standard for specificity that it would call into question the authority of any agency to take any action not specified in its enabling legislation — thus making the current administrative rule making process moot.

For example, opponents to the ETS argued that Congress had only empowered OSHA to protect employees by hazards caused by their employers, not all hazards experienced at work. Thus, since employers were not responsible for COVID, they had no obligation to protect workers from infection. Yet there is no basis in OSHA’s 50-year history to suggest such a limitation. If OSHA protection only extended to employer-created hazards, it couldn’t establish standards based on local climate conditions or altitude, because the employers didn’t create the weather. Nor could it mandate against protection against blood borne pathogens brought into the workplace by clients, patients, or other employees.

In another line of argumentation, many Justices found it odd that OSHA, not the Department of Health and Human Services (HHS), was implementing safety standards. Yet almost every government agency has the responsibility for setting standards that effect human health — within the scope of the activity it oversees. In particular, government bodies like Environmental Protection Agency (EPA), Department of Energy, Department of Agriculture, and Department of Homeland Security have extensive internal resources to make and enforce health standards.

If Court is permitted to require that all agency authority be specified in legislative language, thus eliminating the role of rulemaking, it will shift the burden of administration from the hundreds of thousands of people employed by administrative agencies to the at most thousands who work directly for Congress.

The ETS as a Violation of Individual Rights

Finally, without making any specific claim, opponents of the ETS went unchallenged in a series of arguments that depend on a finding that it violates the individual rights of employers or employees and therefore must be evaluated using the strict scrutiny standard.

For example, arguments that OSHA is applying the law “inconsistently” because it only applies to entities employing over 100 people suggests a discriminatory classification under the Equal Protection Clause. Similarly, claims that the law doesn’t draw distinctions among the different levels of risk in different indoor jobs assume an obligation for the agency’s actions to be “narrowly tailored.”

An even more direct claim for a new civil liberty is that employees should be able to reject protection because they have an individual right to be infected that includes the right to infect others. This seems to be based on the frequent description of masks and COVID tests as “medical devices,” thus making the ETS a form of mandatory medical treatment. Yet, even if true, the ETS is still far less invasive than routine workplace drug and alcohol testing, which require production of bodily fluids.


If the U.S. Supreme Court finds that OSHA lacks the authority to protect workers from contracting one of the most contagious and dangerous viruses ever to descend on the United States, either because of a general lack of federal power to do so, a lack of specific Congressional instruction, or because it unduly burdens the rights of individuals to infect others at work, then the federal government’s role in using its vast resources to protect the country from threats to our economy and national security may as well not exist.

Even worse, if the result of this case is the recognition of an individual’s right to infect others, then not just the federal government’s efforts to counter the pandemic, but also those of any individual state still interested in doing so, will be found unconstitutional.

Once the Supreme Court issues its order, whatever legal schema it offers for balancing federal and state power will be the law in our version of the United States — perhaps leaving in place in another universe a federal government with the power and desire to step in and protect the nation when, like now, it is faced with a deadly pandemic it cannot effectively fight because the perceived political self-interest of individual states makes them unwilling to act in the common good.

Jennifer S. Bard

Jennifer S. Bard is a professor of law at the University of Cincinnati College of Law where she also holds an appointment as professor in the Department of Internal Medicine at the University of Cincinnati College of Medicine. Prior to joining the University of Cincinnati, Bard was associate vice provost for academic engagement at Texas Tech University and was the Alvin R. Allison Professor of Law and director of the Health Law and JD/MD program at Texas Tech University School of Law. From 2012 to 2013, she served as associate dean for faculty research and development at Texas Tech Law.

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