A Quirky Ping-Pong Ball Lottery Just Dealt a Blow to Biden’s COVID-19 Vaccine Mandate

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.

The Occupational Safety and Health Administration (OSHA) issued the emergency rule on Nov. 4 and it was almost immediately challenged. More than two dozen Republican-led states, as well as companies, business groups, unions, and religious organizations filed nearly three dozen lawsuits challenging 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.
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In 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. While justices do not necessarily rule along party lines, the judiciary has become increasingly partisan in recent years. Former President Donald Trump appointed a record number of appellate judges during his time in office, with his picks now making up 30% of active appeals court judges. This expanded the conservative majorities of several circuit courts, including the Sixth Circuit, effectively reshaping the judiciary at the highest level below the Supreme Court.

The Fifth Circuit, a right-leaning appeals court, already put the OSHA vaccine mandate on hold last week. Now all the cases will be transferred to the Sixth Circuit, which will hear consolidated arguments anew. A panel of three appeals court judges still has to be chosen, and it could include liberals, but legal experts noted that the Sixth Circuit has more than twice as many judges appointed by Republicans as those appointed by Democrats.

A drum full of ping-pong 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. Originally, the agency in question chose the circuit that would hear the consolidated cases, and then the rules allowed whoever filed their petition first to choose the circuit. But in order to avoid questions of bias or races to the courthouse, Congress replaced these with a random lottery system in 1988.

The federal statute governing the lottery provides a 10-day window to challenge an agency’s action. Any circuit where a lawsuit is filed during that time has an equal chance of being chosen. After the 10 days conclude, the Judicial Panel on Multidistrict Litigation clerk pulls a ping-pong ball out of a drum to determine where the case will be heard.

The lottery has been used in two other cases 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.

Vaccines or masks and COVID-19 tests

The OSHA vaccine mandate, which is expected to cover 84 million workers, says that companies with more than 100 employees must either require their workers to get vaccinated against COVID-19 by Jan. 4 or require them to wear masks and undergo regular testing. The rule includes exemptions for medical and religious reasons, as well as for employees who work from home or only outside.

The Biden Administration says it believes it has the authority to issue this kind of mandate through OSHA given the ongoing pandemic. But the agency’s track record on emergency rules is shaky. It has issued emergency rules 10 times since it was created in 1971; of the six that have been challenged in court, only one has survived.

Experts say there is precedent for the agency acting to protect workers during broader public health crises. Wendy Parmet, a Northeastern University law professor who focuses on public health law, noted that OSHA issued regulations around how companies should handle HIV, also a communicable disease. “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

Agency officials say the current political climate has likely influenced the challenges to the vaccine rules. COVID-19 restrictions have become highly politicized in the past two years. 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.

This partisan environment likely affected how many groups filed lawsuits over the OSHA mandate. In total, 34 cases were filed in all 12 regional circuit courts by conservative groups and liberal ones, including 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. While they were also challenging the mandate, by doing so in circuits that were thought to be more favorable to Democrats, they guaranteed there was at least a chance the consolidated cases would be heard by a liberal-leaning court.

All eyes on the Sixth Circuit

All 34 cases will now be transferred to the Sixth Circuit. 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. Successfully blocking the vaccine mandate would likely encourage conservatives to challenge more federal agency actions under Biden for the remainder of his term.

With reporting by Julia Zorthian