A vaccine law expert explains the 3 most likely legal challenges Biden’s federal vaccine mandate might face

• President Joe Biden on Thursday announced a series of new COVID-19 vaccine mandates for employees.
• The plan is the most substantial federal vaccine mandate in the country’s history, according to a vaccine law expert.
• Brian Dean Abramson described to Insider the legal challenges the far-reaching mandate might face in court.
• See more stories on Insider’s business page.

President Joe Biden on Thursday announced a series of new, stricter COVID-19 vaccine requirements targeting both the public and private sector.

Brian Dean Abramson, a leading expert on vaccine law, told Insider the plan is by far the most substantial federal vaccine mandate in the history of the country, in part, because there have historically been very few federal vaccine mandates at all.

The administration will require employers with more than 100 employees to mandate vaccines or weekly testing – a move that will affect more than 80 million workers. Federal employees, contractors of federal agencies, and staff at all healthcare facilities that receive funding from Medicare or Medicaid will also be required to show proof of vaccination.

The plan, which also includes the imposition of fines of up to $14,000 per violation for employers that ignore these mandates, is part of the president’s attempt to counteract the Delta variant’s threat in the US.

“They’ve come from the states,” Abramson said. “During the smallpox epidemics in the 19th century and early 20th centuries, it was fairly common for states to mandate smallpox vaccines for large portions of the population.”

Similarly, employer and school vaccine mandates have been historically abundant, as well, during different points in American history, Abramson said. Over the past few months, several large companies have already imposed their own COVID-19 vaccine requirements before Biden’s Thursday announcement.

“But it’s been a very long time since we’ve had anything this far-reaching, and we’ve never had anything this far-reaching come from the federal government before,” Abramson said.

Biden’s announcement that the Occupational Safety and Health Administration would soon be tasked with writing and enforcing the vaccine requirement elicited a slew of angry and defiant responses on Thursday afternoon, particularly from Republican lawmakers who accused the president of everything from “assaulting private businesses” to “trampling on civil liberties.”

With the fierce politicization of vaccines in recent months and the fervent political divide across the country, Abramson said the Biden administration’s vaccine mandate is certain to face legal challenges.

As he sees it, there are three prevailing questions that remain to be resolved.

OSHA and the Commerce Clause

The first possible legal hurdle to the president’s intended vaccine mandate has to do with the Commerce Clause of the US Constitution, which gives Congress the constitutional power to regulate commerce both with foreign nations and among the states.

The question the courts will likely have to answer is whether OSHA, a federal regulatory agency tasked with keeping workers safe, has the power to broadly mandate vaccines under the Commerce Clause.

Congress passed the Occupational Safety and Health, which was signed by President Richard Nixon in 1970, that created OSHA.

OSHA has historically been given broad authority to regulate workplace safety, instituting a number of standards across a variety of industries. Similarly, the Commerce Clause has been construed fairly broadly to allow the government to step in and impose its will when it can demonstrate that something – in this case, COVID-19 – has an impact on interstate commerce, Abramson said.

“Obviously the COVID pandemic has affected interstate commerce,” he said. “It travels from state to state and it can be transmitted by people in any walk of life.”

The Commerce Clause gives Congress the broad power to legislate; Congress has the power to delegate authority to agencies like OSHA; and OSHA has the authority to make and enforce rules that protect worker health and safety.

A successful challenge under the Commerce Clause would be the most constitutionally effective in overriding or dismantling the Biden administration’s mandate, Abramson said.

“If there was a Commerce Clause challenge and it succeeded, that would have the strongest impact toward eliminating the ability of the federal government to require broad vaccination mandates,” he said.

But he also thinks that particular argument is weak. There’s a separate possible challenge he thinks is stronger.

Overly burdensome or discriminatory requirements

Abramson said he anticipates several challenges will be raised regarding how exemptions are made available and applied to those who remain unvaccinated.

The two most likely vaccine exemptions will be for those who have a religious opposition to the vaccine, and those who have a certain disability covered under the Americans with Disabilities Act that prevents them from receiving the shot, Abramson said.

The question this challenge poses is: what is an appropriate, non-discriminatory, non-burdensome accommodation for those with exemptions?

Historically, school students who have been exempt from vaccine requirements have not been treated any differently after receiving approval for their exemption, Abramson said. But COVID-19 has prompted a shift in these standards, and those who once would not have been treated any differently due to their vaccination status, now find themselves facing extra restrictions, like testing and masking.

“The question of whether it’s discriminatory or burdensome is probably a stronger argument,” Abramson said. “But it isn’t an argument that necessarily eliminates mandates.”

If such a challenge succeeded – something Abramson conceded was possible – the federal vaccine mandate would likely not be dismantled or overturned. Instead, it would prompt the regulation to be rewritten in a more carefully tailored way, Abramson said.

Another hiccup in the overly-burdensome challenge is the fact that many vaccinated people have returned to wearing masks in public amid the spread of the Delta variant, meaning the presence of a mask no longer necessarily indicates whether a person is vaccinated or unvaccinated.

The question of antibodies

A third question, one that hasn’t yet demanded the same attention as the previous two, is whether those who already had COVID-19 should be subject to vaccine mandates.

Abramson said more and more unvaccinated people who already had the illness are starting to argue that they should be exempt from vaccine requirements because they have the COVID-19 antibodies that the vaccines deliver to their bodies.

He said the challenge could end up being a due process clause: If you can prove you had COVID-19, you may end up with a compromise rule where a specific number of antibody levels could possibly exempt you from the vaccine.

A long road ahead

Biden’s Thursday announcement detailing the federal government’s vaccine mandate was heavy on speechifying and light on specifics.

“We have to wait and see what OSHA says,” Abramson said, noting that the final version of the government’s mandate will likely be more nuanced. “There’s a long sausage-making process between here and there.”

He said it’s possible the final OSHA rule will incorporate measures to avoid the kinds of concerns that could lead a court to overturn the mandate.

“My anticipation would be with the initial challenges, we’re not going to see a suspension of this rule,” he said.