The Power to Respond: A Look at Governmental Powers in Times of Emergency

 /  April 19, 2022, 11:33 p.m.

mask protest

In the two years since the COVID-19 pandemic began, the federal government has had to make tradeoffs between protecting public health and supporting the economy. From the first closures of in-person services in early 2020 to the recent spread of vaccine mandates, protection measures have been met with vigorous opposition and challenges to the scope of the rules. In some cases, opponents brought these demands to the courts, and it remains unclear where the boundaries fall for government power. As Justice Neil. M. Gorsuch remarked, the most prominent legal question that has arisen from the pandemic is “not how to respond to the pandemic, but who holds the power to do so.”

The Center for Disease Control (CDC) has played a central role in pandemic response, though their formal response powers in a medical emergency are not outlined clearly in the law. The agency, like many others in the federal bureaucracy, was originally intended to act as an advisor to the executive in the exceptional cases when the agency is invited by local authorities to take control or in a federal government breakdown. Under the Public Health Service Act, the federal government holds general powers “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession”. Nowhere in the law, however, is there explicit language about the ability to enforce specific preventative measures, such as requiring face masks in response to a public health scare. Though some consider such a mandate an infringement on personal liberty, its success depends on mass acceptance. Thus the exercise of such unclear powers depends heavily on the ideology backing the party in power, which made the 2020 election crucial in determining the next steps in response to the pandemic. 

The political shift in January 2021 from the Trump administration to the Biden administration marked a notable change in policies on masking and COVID-19 guidelines. While the Trump administration had (after some delay) recommended the use of masks, particularly in public settings, the latter took a far more aggressive stance. On his first day in office, President Biden signed an executive order to require masking and physical distancing in federal buildings, on federal lands, and by government contractors. The administration continued to pursue an aggressive response that responded to the national data on  COVID cases, hospitalizations, and deaths. They allowed fully vaccinated people to relax their vigilance with masks as cases fell in the spring of 2021, then recommended protective masks inside once more as cases of the Delta variant began to rise in the summer. 

In a bid to increase the number of vaccinated Americans, which was then at 70 percent of adults, the Biden Administration announced two major policies in November 2021. The first was the Department of Labor’s Occupational Safety and Health Administration (OSHA) requirement that employers with 100 or more employees ensure each of their workers is fully vaccinated or tests for COVID-19 on a weekly basis. The OSHA rule also required that these employers provide paid time for employees to get vaccinated and ensure all unvaccinated workers wear a face mask in the workplace. The response was a barrage of lawsuits alleging that the department was overstepping their authority and that the rule placed undue pressure on small businesses. The Fifth Circuit stayed OSHA’s rule pending further judicial review, meaning that OSHA was prevented from taking any steps to enforce the rule. A consolidation of the major cases against the OSHA rule was then presented before the Sixth Circuit Court of Appeals as OSHA requested that the Fifth Circuit’s stay be vacated. A three-judge panel subsequently dissolved the stay on the grounds that the rule was consistent with the agency’s constitutional authority. The case was then further appealed and brought before the Supreme Court for an expedited argument on January 7, 2022. The Court ruled that the applicants were likely to prevail and stayed the rule once more, in accordance with the initial Fifth Circuit decision. 

The Court’s 6-3 ruling hinged on the belief that OSHA superseded their authority in rulemaking to issue such a decree. The typical rulemaking process for the agency is “notice-and-comment”, a process that offers an opportunity for the public to air their opinions before a finalized version is published and enforced. Exceptions to this process are only allowed for temporary emergency standards, which can only be used in narrow circumstances where “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” The majority decision of the Court held that the broad nature of the rule, which lacked distinction by industry and individual level of risk, invalidated its ability to qualify as an emergency. 

This decision was in keeping with the precedent. The Secretary of the Department of Labor has only exercised emergency powers nine times; six cases faced legal challenges and only one rule survived a challenge. In this case, the Court’s decision rested on the fact that OSHA is meant to govern safety standards in the workplace. Given that vaccination status cannot be altered between the home and workplace, such a rule qualifies as a broad public health measure rather than a workplace regulation. The Court disputed the authority of OSHA further because members of the bureaucracy are not elected but rather appointed by the sitting president. The argument that the administration of such a far-reaching rule by unelected officials violates the bounds of republicanism determined the first boundary on who has the power to respond to the pandemic. 

The second rule by the Biden Administration was a requirement that healthcare workers at facilities participating in Medicare and Medicaid are fully vaccinated, because they fall under the purview of the Centers for Medicare & Medicaid Services (CMS) at the Department of Health and Human Services. The Medicare program provides health insurance to individuals 65 and older, as well as those with specific disabilities, and the Medicaid program does the same for low-income individuals. The Secretary justified the rule based on findings that unvaccinated workers “pose a serious threat to the health and safety of patients,” most of whom are elderly, disabled, or in poor health conditions. Two separate groups of states, led by Louisiana and Missouri, challenged the rule immediately, with district courts ruling in favor of the states in both cases. Preliminary injunctions were filed against enforcement of the rule, and it proceeded into appellate jurisdiction. 

This time, in a 5-4 decision, the Supreme Court allowed the CMS vaccination mandate for health care workers at federally funded health care facilities. The holding concluded “that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19”. This is because the rule did not significantly differ from the existing conditions for facilities receiving such funding; they have always had to meet strenuous standards for the “safe and effective provision of healthcare.” Vaccination requirements are also a longstanding feature of healthcare employment conditions for easily communicable diseases. Thus, the extent of power exercised by the CMS did not depart significantly from historical precedent. 

The difference between the outcomes of the decisions in seemingly similar rules can be traced back to their scope and intended effects. While the OSHA rule was expected to cover 84 million employees, the CMS rule applied to only 17 million workers. The CMS rule also applied specifically to people in high risk occupations, as they work directly with immunocompromised members of society, thus posing a justifiable risk. One study found that approximately 10 percent (14.4 million) of US workers face exposure to infection at least once per week, and approximately 18.4 percent (26.7 million) face such exposure at least once per month. Thus, the general implication that the OSHA rule would save lives was not found to be substantive enough to impose a broad regulation. Furthermore, the CMS rule was particular to federal funding dollars, for which the government has always reserved the right to place stipulations. It did not directly determine whether operations could continue, unlike the OSHA rule.

In the weeks since these decisions, the CDC has relaxed its masking recommendations in public spaces and schools. Mask mandates around the country have lifted in the aftermath, with Hawaii serving as the final state to do so by March 26, 2022. With government enforced mandates being retracted as disparities remain in how Americans view the pandemic and the appropriate current response to it, questions are arising as to who now controls the right to dictate mask and vaccine requirements. In the wake of Texas governor Greg Abbott’s decision to lift the mask mandate in his state, Houston Police Chief Art Acevedo tweeted out a reminder that “private businesses enjoy property rights and may require folks to wear a mask [...] Please respect their property rights. If you decline to wear a mask and are asked to leave and refuse, you may be committing the offense of criminal trespass." According to this view, private institutions like businesses reserve the right to maintain a mandate. At the same time, states like Alabama have barred the checking of vaccination status to permit entry to local businesses, raising questions about the extent to which governments can authorize or prevent private business actions. In many ways, the easing of federal guidelines has allowed for a decentralization of power as state governments to take the helm in leading COVID-19 response strategies. 

Schools in particular have become a battleground for mask and vaccine mandates. Many parents are eager to return to the normal educational experience, particularly for K-12 schools, as research has shown that students have lost months of expected learning during the pandemic. At the same time, educators remain nervous about a high-contact environment and the increased risks of transmission that come with a return to in-person teaching. Each state has been given the power to respond to this differently, ranging from prohibiting schools from using vaccination status as a condition for attendance to requirements that students are vaccinated as soon as they become eligible. 

When it comes to higher education, there is still no prevailing determination for public schools. However, private schools fall under the same category as privately run businesses and thus have the jurisdiction to apply mandates as they see fit. In the state of Illinois, the University of Illinois System is requiring that all faculty, staff and students receive a COVID-19 vaccine booster shot as soon as they are eligible. All students who are not able to receive the vaccine for medical or religious reasons must request an exemption and submit any relevant documentation, and are required to test unless there are changes to their vaccination status. 

The University of Chicago published its guidelines following those established by Governor Prizker, requiring vaccines and boosters upon eligibility unless an exemption can be granted with proof. The University’s website further champions the vaccines, asserting that all three possible brands “have received either full approval or emergency use authorization (EUA) by the U.S. Food and Drug Administration all have undergone thorough testing for safety and efficacy in large clinical trials,” The ability of the university to establish such guidelines is founded in the fact that each student, teacher, and affiliate signs a contract with the University in which they agree to be liable to the rules established by the institution. The right to education may be fundamental, but the right to education on campus at the University of Chicago is not. The inclusion of exemption options to protect religious rights and the creation of a virtual educational option provide ample room to protect individual freedoms along with general safety. 

The legal precedent for such determinations was established in Kiel v. the Regents of the University of California, a landmark 2020 case on vaccinations in physical school spaces. The plaintiffs requested that the UC System be prevented from enforcing a requirement that all students, faculty, and staff receive a flu vaccine as a condition of accessing a UC System campus. They argued that the UC flu vaccination mandate violated their federal and state constitutional rights to privacy, bodily integrity, and autonomy. However, the UC System had provided a religious exemption and only enforced the rule for those interacting directly with other members of the educational community, and the court held that plaintiffs were unlikely to prevail. Thus, Kiel and its predecessors set a legal precedent protecting the right of a private institution to maintain vaccination mandates within reasonable limits. In July 2021, this principle was upheld when a federal court ruled that the Fourteenth Amendment permits Indiana University to require vaccination in the interest of public health. The Fourteenth Amendment includes the Due Process Clause, which states that no person shall be “deprived of life, liberty, or property without due process of law,” creating a strong layer of legal protection for civil liberties that has been tested and refined in courts over the years.  

Even after the OSHA and CMS decisions, the boundaries of government power to enforce far-reaching mandates remain murky as to who has the power to determine far-reaching mandates and what qualifies as a mandate that is an overextension of existing powers. Whether that power differs between rules regarding masks, which can be worn and removed at leisure, and vaccines, the status of which cannot be reversed, remains unanswered. State governments and the Biden administration continue to monitor the pandemic closely, recording case and hospitalization rates to assess which protections suit the current level of public health risk. It has become starkly clear that the pre-existing rules surrounding states of emergency are too vague to provide clear guidance to public health officials; historical precedents are being built around the legal decisions that continue to emerge. 

The clawback of federal mandates over recent months and shift towards state-oriented responses suggests a strategy that is likely to persist in coming months. The nation is progressing slowly out of its initial state of emergency and power is flowing to the community level. This has historically been especially effective in America; national polarization surrounding pressing social issues means public opinion exhibits greater homogeneity locally. As state and local governments take the reins, the voice of the people as it varies across geographies can be more clearly represented. Still, the situation remains contentious, because the choices of some can affect the lives of many. In many ways, the power to respond is being handed off to the American people, in the hopes that they know how to wield it for themselves. 

The image featured in this article is licensed under the Creative Commons Attribution 4.0 International license. It has not been altered from the original, which was taken by Sarah Stierch and can be found here.

Niharika Iyer


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