Some weeks ago in my fall semester American Government classes, we took a close look at this ruling by the Fifth Circuit Court of Appeals in Louisiana, in which that court blocked from taking effect OSHA’s new regulation requiring either vaccine or COVID tests in for workers whose employers had 100 or more employees. In that ruling, the appeals court found that OSHA, a regulatory agency under the Department of Labor, had exceeded its power to issue emergency regulations and that the federal government as a whole had exceeded its power under the interstate commerce clause to regulate private business. But on December 17, another appeals court–the Sixth Circuit, in Ohio–reversed that ruling, reinstating OSHA’s mandate. (Here is that ruling.)
Before an issue gets to the Supreme Court, lower courts have a way of resembling two or more kids playing in a room where there’s more than one switch for the ceiling light: one kid turns it on; another kid, at another switch, turns it right back off. In this instance, because there were multiple cases in different districts and circuits challenging the OSHA regulation, a special panel that handles that kind of situation invoked the lottery system, where one circuit court would be chosen to handle the consolidation of all of those cases. The Sixth Circuit won the lottery and thus got to make this ruling. They’re still hearing the merits of the case, and it’s pretty clear that the Supreme Court will have the final word on the issue.
Meanwhile, a district court in Louisiana has ruled that Biden exceeded his authority when he ordered Head Start teachers vaccinated and ordered the Head Start pupils to be masked. Head Start is a federally funded program providing preschool education to low-income children; it is a creation of Lyndon B. Johnson’s Great Society. As with the other issue, this one involves a suit brought by multiple states. Thus, the dynamics of federalism, that is, the relationship (often conflictual) between national and state levels of government, and of checks and balances, the ways that the three branches of the federal government limit each other’s power, are alive and well in this COVID crisis.
Reuters article about the Sixth Circuit ruling, December 17, 2021
Yahoo! article about the Head Start ruling, January 1, 2022