A peculiar ping-pong ball lottery—think: the NBA draft, only required by federal law—on Tuesday dimmed the fate of the Biden Administration’s new mandate governing COVID-19 vaccine requirements for large employers.
On Nov. 4, the Occupational Safety and Health Administration issued an emergency rule. It was quickly challenged. More than 20 Republican-lead state legislatures and companies as well business organizations, unions, and religious organisations filed more than 30 lawsuits to challenge the mandate. While the majority of the lawsuits argued that the government had overstepped its authority, some made the case that the rule didn’t go far enough to protect workers.
Itn a bad sign for Biden’s mandate, the lottery consolidated all these cases under the Sixth Circuit Court of Appeals, where a majority of the justices have been appointed by Republican presidents. Although justices don’t always rule in a party-oriented fashion, they have become more partisan over the years. Trump’s former president appointed an unprecedented number of appellate judges in his tenure. His picks currently make up 30% of all active appeals court judges. The Sixth Circuit was one of the most conservative circuit courts. This effectively changed the structure of the judiciary below the Supreme Court.
OSHA’s vaccine mandate was put on hold at the Fifth Circuit. It is an appeals court with a conservative bias. All cases are now being transferred to the Sixth Circuit for consolidated hearings. Three appeals court judges are still needed. It could be liberals. But legal experts have noted that more Republicans were appointed to judges in the Sixth Circuit than they were appointed by Democrats.
Drum full of pingpong balls
The ping-pong lottery was organized by the clerk at the Judicial Panel on Multidistrict Litigation in Washington, D.C. Federal law requires that the lottery is used when multiple lawsuits challenging a federal agency’s actions are filed in separate courts, says Sean Marotta, a lawyer at Hogan Lovells, who has studied the system. Originaly, the agency selected the circuit to hear the consolidated cases. The rules then allowed anyone who filed their petition the right to select the circuit. To avoid any biases or races at the courthouse in future, Congress created a random lottery system that was replaced by the original agency in 1987.
The federal statute governing the lottery provides a 10-day window to challenge an agency’s action. Each circuit with a complaint filed in that period has the chance of winning. The Judicial Panel on Multidistrict Litigation Clerk pulls out a pingpong ball from a drum after the 10 day period ends to decide where the case will hear.
Two other cases have used the lottery this year. One involved a ruling from the National Labor Relations Board, and the other an order from the Federal Energy Regulatory Commission. Typically a quiet, bureaucratic process, it’s rare that the lottery system is used in high-profile cases with such far-reaching consequences as the government’s vaccine requirement.
Tests for COVID-19 and vaccines, masks
OSHA’s mandate for vaccine coverage, expected to affect 84 million people, requires that all companies employing more than 100 workers get COVID-19 vaccinations by January 4. It also states that employees who have been employed in more than one year must wear masks to ensure they are tested regularly. There are exemptions available for religious and medical reasons as well as employees working from home.
Given the continuing pandemic, the Biden Administration claims it is able to issue OSHA this type of mandate. But the agency’sThe track record of emergency rules has been hazy. Since 1971, it has published emergency rules ten times. Of the six challenged by courts, one survived.
Experts agree that there’s precedent for an agency protecting workers in times of larger public health crises. Wendy Parmet from Northeastern University is a professor in law who focuses her research on public health. She noted that OSHA has issued guidelines for how to handle HIV. “We don’t have anything quite comparable. We have not had a pandemic of this kind of severity since OSHA has been created, but it did respond to HIV,” she says. “The mandate is very defensible, and I think it should be seen as within OSHA’s purview.”
Parmet called the conservative lawsuits’ arguments that the OSHA rule is unconstitutional “shocking and quite troubling.” If judges ultimately agree with that argument, she says, that begins “to call into question many workplace laws and many other kinds of regulations that we take for granted to keep people safe.”
Polarized political climate
Officials from the Agency say that the political climate is likely to have influenced vaccine regulations challenges. In the last two years, COVID-19 regulations have been highly politicized. Conservative politicians have also challenged the Biden Administration’s vaccine requirement for health care workers, as well as mask mandates in schools and cities around the country.
“What OSHA’s doing isn’t all that radical, but given the extreme positions Republican politicians and legislators are taking right now, it puts OSHA in the national spotlight in terms of the current controversy,” former Deputy Assistant Secretary of Labor for OSHA Jordan Barab told TIME in September, when Biden first called for the agency to issue an employer vaccine mandate.
The partisan atmosphere likely influenced the number of groups that filed suits against OSHA. All 12 regional circuit court courts received 34 lawsuits from conservative and liberal organizations, as well labor unions.
“The unions were targeting liberal circuits, meaning circuits with a majority of judges or a near majority of judges who were appointed by Democratic presidents,” says Marotta. Although they also challenged the mandate by moving to circuits more favorably to Democrats they ensured there would be at least some chance that the consolidated cases will be heard on a liberal-leaning tribunal.
The Sixth Circuit is all eyes
The Sixth Circuit will transfer all 34 cases. It’s likely the Justice Department will ask the new court to lift the stay the Fifth Circuit previously put on the mandate, and legal experts say this dispute could end up at the Supreme Court, which has a six-three conservative majority. It’s not clear how the Supreme Court would rule. It recently declined to block Maine’s rule requiring COVID-19 vaccines for health care workers, and also rejected challenges to Indiana University’s mandate and New York City’s mandate for teachers.
If the courts ultimately agree with the conservative challengers and strike down the vaccine requirement, it would amount to a significant blow to the Biden Administration’s COVID-19 response, experts say. With such slim majorities in Congress, the Administration has relied on federal agencies to implement much of the President’s agenda. If the vaccine mandate is blocked, conservatives will likely be encouraged to continue challenging federal agency actions by Biden during the remaining term.
—Julia Zorthian reports