Free Oregon, Inc. v. Oregon Health Authority

460 December 13, 2023 No. 649

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

FREE OREGON, INC.

and Mandate Free Oregon, Inc.,

Oregon non-profit corporations;

Doctors for Freedom,

an unincorporated association;

Health Freedom Defense Fund;

and Tamara Dimmick; Rasa Sidagyte; Michelle Davis;

Lisa Nave; Charlotte Persinger; Chrystal Gervais;

Aaron Harris; Roy McGrath; Glenn Campbell;

Jessica Cox; Brittany Wilson; Joshua Williams;

and Molly Valdez, individuals,

Petitioners,

v.

OREGON HEALTH AUTHORITY,

Respondent.

Oregon Health Authority

A176977

Argued and submitted December 2, 2022; on respondent’s

motion to dismiss as moot filed July 5, 2023; and petitioners’

response to motion to dismiss as moot filed July 12, 2023.

Tyler D. Smith argued the cause for petitioners. Also on

the briefs were Yasha Renner and Tyler Smith & Associates,

P.C.

Phillip Thoennes, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Before Aoyagi, Presiding Judge, and Lagesen, Chief

Judge, and Jacquot, Judge.*

______________

* Jacquot, J., vice James, J. pro tempore.

Cite as 329 Or App 460 (2023) 461

LAGESEN, C. J.

Motion to dismiss as moot denied; former OAR 333-019-

1010 (Jan 31, 2022) and former OAR 333-019-1030 (Jan 28,

2022) held valid.

462 Free Oregon, Inc. v. Oregon Health Authority

LAGESEN, C. J.

This is a rule challenge under ORS 183.400.

Petitioners seek judicial review of former OAR 333-019-1010

(Jan 31, 2022) and former OAR 333-019-1030 (Jan 28, 2022),1

rules adopted by the Oregon Health Authority (OHA) that

imposed COVID-19 vaccination requirements on providers

and staff in healthcare settings, and on teachers and staff

in school settings, respectively. The rules have since been

repealed. Petitioners argue that OHA exceeded its statutory

authority by adopting those rules and, furthermore, that

the rules are preempted by federal law, violate the principle

of separation of powers, violate due process requirements,

and violate the Contract Clause of the Oregon Constitution.

OHA responds that the repeal of the rules renders this pro-

ceeding moot and that all of petitioners’ challenges fail. For

the reasons that follow, we conclude that (1) OHA has not

demonstrated that this proceeding is moot; and (2) petition-

ers’ arguments do not present grounds for invalidating the

rules. Accordingly, we hold the rules valid.

I. BACKGROUND

OHA first adopted OAR 333-019-1010 and OAR

333-019-1030 as temporary rules in 2021, then as perma-

nent rules in 2022.2 Identifying the statutory source of its

authority to adopt both rules, OHA listed ORS 413.042, ORS

431A.010, and ORS 431.110, statutes which pertain specif-

ically to OHA, and ORS 433.004, which pertains to public

health and safety more generally.3

Relevant to petitioners’ challenges, subsection 3 of

both OAR 333-019-1010 and OAR 333-019-1030 instructed

1

When this case began, the rules at issue had been promulgated as tempo-

rary rules. When OHA promulgated permanent rules, the court permitted peti-

tioners to amend their petition for judicial review to challenge the permanent

rules. This opinion addresses the permanent rules.

2

OAR 333-019-1010 was in effect as a temporary rule from August 5, 2021,

until January 31, 2022. OAR 333-019-1030 was in effect as a temporary rule from

August 25, 2021, until January 28, 2022. Both rules were adopted as permanent

in January 2022, temporarily suspended in May 2023, and repealed in June 2023.

3

For OAR 333-019-1010, OHA also cited ORS 426.415, ORS 443.085, ORS

443.315, ORS 443.450, ORS 443.745, ORS 443.790, ORS 443.860, and ORS

441.025, which pertain to healthcare licensing and facility rules. Consideration

of those statutes as sources of authority is not necessary to resolve this matter.

Cite as 329 Or App 460 (2023) 463

schools and healthcare facilities that they “may not employ,

contract with, or accept the volunteer services of” individuals

unless they “are fully vaccinated against COVID-19 or have

an approved or accepted medical or religious exception.” The

rules also required those individuals to provide proof of vac-

cination or documentation of a medical or religious excep-

tion to their respective school or healthcare facility and set

forth the standards applicable to the required documenta-

tion. OAR 333-019-1010(6) and OAR 333-019-1030(10). The

rules further explained that employers of school and health-

care facility employees were responsible for “tak[ing] rea-

sonable steps to ensure that unvaccinated” individuals with

exceptions to the vaccination requirement “are protected

from contracting and spreading COVID-19.” OAR 333-019-

1010(4); OAR 333-019-1030(4), (6). Additionally, each rule

provided that employers “who violate any provision of this

rule are subject to civil penalties of $500 per day per viola-

tion.” OAR 333-019-1010(7); OAR 333-019-1030(11).

Petitioners assert that those rules are invalid on

several distinct grounds. They first argue that the statutes

cited by OHA as authority for the promulgation of the two

rules do not grant such authority. Next, petitioners contend

that the rules conflict with two other statutes: ORS 431.180

and ORS 433.416. Petitioners then assert that the rules are

preempted by section 564 of the Food, Drug, and Cosmetic

Act (FDCA), codified at 21 USC § 360bbb-3.4 Petitioners fur-

ther argue that the rules offend separation-of-powers prin-

ciples. Petitioners also contend that the rules violate the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution by threatening public employ-

ees’ protected property interest in continued employment

by “mandat[ing] a predetermined outcome without any

right to a hearing.” Finally, petitioners argue that the rules

impermissibly impair employment contracts, in violation of

the Contract Clause of Article I, section 21, of the Oregon

Constitution. For the reasons that follow, we reject each of

petitioners’ challenges and hold former OAR 333-019-1010

and former OAR 333-019-1030 valid.

4

For the sake of readability, except where citing to specific sections of the

statute, we refer to 21 USC § 360bbb-3 as “section 564” throughout this opinion.

464 Free Oregon, Inc. v. Oregon Health Authority

II. MOOTNESS

Because the challenged rules have been repealed,

we must first consider whether this proceeding is moot.

“Whether a case has become moot will depend on

a factual determination regarding the potential impact of

the court’s decision on the parties.” Garges v. Premo, 362 Or

797, 802, 421 P3d 345 (2018). If the party arguing against

mootness “can identify ‘practical effects or collateral conse-

quences’ ” that flow from the outcome of their case, then the

burden shifts to the party advocating mootness to show that

the effects and consequences identified are either “ ‘legally

insufficient or factually incorrect.’ ” Id. (quoting Dept. of

Human Services v. A. B., 362 Or 412, 426, 412 P3d 1169

(2018)). “[I]n order to prevent a case from being considered

moot, a ‘collateral consequence’ must be something beyond

mere speculation. As we have observed, a collateral conse-

quence must have a significant probability of actually occur-

ring; a speculative or merely possible effect is not enough.”

Johnson v. Premo, 302 Or App 578, 592, 461 P3d 985 (2020)

(internal quotation marks and citation omitted).

OHA argues that petitioners’ challenge to OAR 333-

019-1010 and OAR 333-019-1030 is moot because both rules

were first suspended by temporary administrative order,

then ultimately repealed by permanent order. Petitioners

argue that the challenge is not moot “because a legal deter-

mination invalidating the rules would create binding prece-

dent” that would affect prospective future litigation and one

currently pending lawsuit.

OHA is correct that the repeal of rules ordinarily

renders a rule challenge moot. See, e.g., Mooney v. Oregon

Health Authority, 314 Or App 809, 811, 500 P3d 79 (2021)

(“We long have held that the repeal or replacement of an

administrative rule means an ORS 183.400 challenge seek-

ing to invalidate the displaced rule is moot.”). However, in

this instance, petitioner Cox asserts that a determination

of the validity of the rules would affect an ongoing proceed-

ing, in which petitioner challenges her employer’s decision

to place her on unpaid leave based on her failure to obtain a

vaccination or exemption as required by OAR 333-019-1030.

Cite as 329 Or App 460 (2023) 465

OHA has not controverted petitioners’ assertion that a deci-

sion by this court holding the challenged rules invalid could

affect petitioner Cox’s pending lawsuit.5 Under the burden-

shifting framework provided by the Supreme Court in

Garges, 362 Or at 802, it was OHA’s burden to disprove those

consequences once identified, and OHA did not attempt to do

so. Accordingly, OHA has not met its burden to show moot-

ness, at least with respect to OAR 333-019-1030. Because

the arguments with respect to the two rules are identical,

such that dismissing the petition with respect to OAR 333-

019-1010 would have no practical effect on our resolution of

them, we proceed to consider those arguments.

III. ANALYSIS

To start, we observe that the scope of our review

under ORS 183.400 is limited. “[I]n reviewing a rule chal-

lenge under [ORS 183.400], we may declare the rule invalid

only if we conclude that it violates constitutional provisions,

exceeds the statutory authority of the agency that adopted

the rule, or was adopted without complying with rulemak-

ing procedures.” BP West Coast Products, LLP v. Dept. of

Justice, 284 Or App 723, 725-26, 396 P3d 244, rev den, 361

Or 800 (2017) (internal quotation marks omitted). Where a

claim is that a rule exceeds an agency’s statutory author-

ity or violates a constitutional provision, “[j]udicial review

is limited under ORS 183.400 to the face of the rule and the

law pertinent to it.” Wolf v. Oregon Lottery Commission, 344

Or 345, 355, 182 P3d 180 (2008). This means that if the res-

olution of a particular constitutional or statutory challenge

to a rule would require the development of a factual record,

the challenge cannot be resolved in a proceeding under

ORS 183.400. Smith v. Dept. of Corrections, 219 Or App 192,

5

Petitioners’ claim that our decision will impact prospective litigation is not

sufficient to carry their initial burden of identifying “practical effects or collat-

eral consequences” that flow from the outcome of their rule challenge. See, e.g.,

Joint Council of Teamsters #37 v. BOLI, 168 Or App 398, 413, 11 P3d 247, rev den,

331 Or 429 (2000) (“The mere possibility that our invalidation of [an order] might

have the practical effect of informing another court’s consideration of the validity

of [that order] in a future action that petitioners could file, but have not filed—

and may never file—is not ‘effectual relief’ for purposes of mootness.”) (empha-

sis in original); Johnson, 302 Or App at 592 (“[A] speculative or merely possible

effect is not enough.”). As explained above, however, the likelihood of this decision

affecting current litigation is sufficient.

466 Free Oregon, Inc. v. Oregon Health Authority

197-98, 182 P3d 250 (2008), rev den, 345 Or 690, cert den,

557 US 923 (2009).

Petitioners argue that two of the three grounds for

invalidating rules are present here: that they violate con-

stitutional provisions and that they exceed OHA’s statu-

tory authority. “Constitutional issues should not be decided

when there is an adequate statutory basis for decision,” so

we begin with the statutory arguments. Douglas County v.

Briggs, 286 Or 151, 156, 593 P2d 1115 (1979).

A. OHA did not exceed its statutory authority.

As mentioned, in a proceeding under ORS 183.400

to determine whether a challenged rule exceeds an agen-

cy’s statutory authority, “we may consider only the ‘wording

of the rule itself (read in context) and the statutory provi-

sions authorizing the rule.’ ” Assn. of Acupuncture v. Bd. of

Chiropractic Examiners, 260 Or App 676, 678, 320 P3d 575

(2014) (quoting Wolf, 344 Or at 355). Based on those sources,

we determine whether the adoption of the rule exceeded the

adopting agency’s statutory authority by examining whether

the agency “ ‘departed from a legal standard expressed or

implied in the particular law being administered, or contra-

vened some other applicable statute.’ ” Id. (quoting Planned

Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565,

687 P2d 785 (1984)). To make that determination, we ascer-

tain the legislature’s intent by examining the text, context,

and pertinent legislative history of the relevant statutes.

Id.; State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

Petitioners contend that the statutes cited by OHA

as authority for the challenged rules did not provide the nec-

essary authority, that the rules contravened ORS 431.180

and ORS 433.416, and that the rules are preempted by fed-

eral law because they contravene 21 USC § 360bbb-3. We

address each argument in turn.

1. OHA had statutory authority to adopt the rules.

As explained above, OHA cited ORS 413.042, ORS

431A.010, ORS 431.110, and ORS 433.004 as authority for

its adoption of OAR 333-019-1010 and OAR 333-019-1030.

Our analysis begins and ends with ORS 413.042 and ORS

Cite as 329 Or App 460 (2023) 467

431.110 because those two statutes provided OHA with suf-

ficient authority to adopt both rules.

ORS 413.042 provides, “In accordance with applica-

ble provisions of ORS chapter 183, the Director of the Oregon

Health Authority may adopt rules necessary for the admin-

istration of the laws that the Oregon Health Authority is

charged with administering.” That text, we have explained,

unequivocally gives “OHA broad rulemaking authority to

carry out the statutes it is charged with administering.”

Adamson v. Oregon Health Authority, 289 Or App 501, 502,

505, 412 P3d 1193 (2017). ORS 413.110 is one of the statutes

that OHA is charged with administering. It directs, among

other things, that OHA shall:

“(1) Have direct supervision of all matters relating

to the preservation of life and health of the people of this

state.

“* * * * *

“(7) Have full power in the control of all communicable

diseases.”

Those provisions unambiguously grant OHA the

authority to promulgate the challenged rules. Put simply,

the legislature granted OHA “full power” to control com-

municable diseases, and to promulgate rules necessary for

doing so. On their face, the challenged rules are rules aimed

at controlling the communicable disease of COVID-19. OHA,

therefore, had the authority to promulgate them.

Petitioners’ main argument to the contrary is that

the statutes do not specifically refer to vaccinations or other-

wise specifically grant OHA the authority to promulgate

rules related to vaccines. In petitioners’ view, the failure

to specifically identify vaccines in the authorizing statutes

supports the inference that the legislature did not intend

to allow OHA to fulfill its obligation to control communica-

ble diseases by promulgating vaccine rules. Had the legisla-

ture identified specific measures available to OHA to control

communicable diseases but omitted a reference to vaccines,

that argument might have some force. Instead, though, the

legislature opted to grant OHA “full power in the control

468 Free Oregon, Inc. v. Oregon Health Authority

of communicable diseases,” without restricting the methods

available to OHA.

Beyond that, vaccines long have played a role in con-

trolling communicable diseases in the United States and, in

addition, it has long been recognized that states have the

police-power authority to impose vaccine requirements when

health officials determine such requirements are necessary

to protect the public health or public safety. See Jacobson

v. Massachusetts, 197 US 11, 25-39, 25 S Ct 358, 49 L Ed

643 (1905) (discussing states’ police-power authority to con-

trol disease, including controlling smallpox through vaccine

requirements). In view of that history, had the legislature

intended to prohibit OHA from employing that common tool

in discharging its mission to control communicable diseases,

we think the legislature most likely would have made that

intended limitation explicit. The fact that the statutes gov-

erning OHA contain no such restriction further weighs in

favor of the conclusion that the legislature intended to grant

OHA broad authority to adopt rules aimed at controlling

communicable diseases, including rules requiring vaccines.

“It is not our role to add limitations that the legislature itself

did not include.” PGE v. Alfalfa Solar I, LLC, 323 Or App

531, 537, 524 P3d 124, rev den, 371 Or 308 (2023) (citing ORS

174.010). We therefore reject petitioners’ contrary argument.

2. The rules on their face do not conflict with

ORS 431.180.

Petitioners next assert that OHA exceeded its stat-

utory authority in adopting the rules because, in their view,

the rules conflict with ORS 431.180. That statute provides:

“(1) Nothing in ORS 431.001 to 431.550 and 431.990 or

any other public health law of this state shall be construed

as authorizing the Oregon Health Authority or its repre-

sentatives, or any local public health authority or its repre-

sentatives, to interfere in any manner with an individual’s

right to select the physician, physician assistant, naturo-

pathic physician or nurse practitioner of the individual’s

choice or the individual’s choice of mode of treatment, nor

as interfering with the practice of a person whose religion

treats or administers sick or suffering people by purely

spiritual means.

Cite as 329 Or App 460 (2023) 469

“(2) This section does not apply to the laws of this state

imposing sanitary requirements or rules adopted under

the laws of this state imposing sanitary requirements.”

Petitioners assert that, because “the legislature has

expressly withdrawn certain subjects from the [OHA’s] pur-

view, namely, an individual’s private healthcare choices,”

the challenged rules, which institute vaccine requirements

for certain individuals in school and healthcare settings,

are “in derogation of ORS 431.180(1) and thus exceed OHA’s

statutory authority.” In petitioners’ view, the rules “inter-

fere” with the “personal healthcare choices” of healthcare

facility and school staff, which the legislature explicitly

prohibits under ORS 431.180(1). Petitioners further assert

that the rules do not constitute “sanitary regulations” under

ORS 431.180(2). After pointing to dictionary definitions of

the words “sanitary” and “sanitation” and to other examples

of sanitary regulations, petitioners assert that “[i]t should

be obvious that such medical mandates [as the challenged

rules] do not qualify as sanitary requirements.”

In response, OHA points out that the rules do not

require any individual to obtain a vaccine or otherwise

choose a particular form of treatment. Rather, the rules,

by their terms, condition the ability to work in a particular

setting on a person having obtained a vaccine, or having

obtained a medical or religious exemption. OAR 333-019-

1010(3); OAR 333-019-1030(3). OHA reasons that because

individuals remain free to choose whether to have a vac-

cine under the terms of the rules, the rules themselves

do not “interfere” with individuals’ ability to choose their

preferred mode of treatment for purposes of ORS 431.180.

Alternatively, OHA asserts that the rules constitute “san-

itary requirements” for purposes of ORS 431.180(2), when

the word “sanitary” is properly understood in the way the

legislature that originally enacted ORS 431.180 would have

understood the word. For the reasons that follow, we agree

with OHA.

The parties’ dispute centers on the meaning of the

terms “interfere” and “sanitary” in ORS 431.180. To resolve

the dispute, we consider those terms in context, along with

any relevant legislative history. State v. C. P., 371 Or 512,

470 Free Oregon, Inc. v. Oregon Health Authority

517, ___ P3d ____ (2023). “In applying that methodology, we

attempt to discern the intent of the legislature that enacted

the statute.” Id.

In this case, as the parties recognize, the legisla-

ture that enacted what is now ORS 431.180 is the 1919 leg-

islature. Or Laws 1919, ch 265, § 151. When the legislature

adopted the Oregon Revised Statutes in 1953, following

the statutory cleanup conducted by the statutory revisions

counsel, it codified that prior law at ORS 431.180, see ORS

431.180 (1953), where it has remained ever since. Although

it has been amended on occasion, none of the amendments

indicate an intention to change the meaning of the statute

as enacted in 1919. In particular, the key terms at issue

have been a part of the statute since 1919. Accordingly, we

examine text and context with the objective of assessing the

intention of the 1919 legislature.6

As originally enacted, what is now ORS 431.180

provided:

“Nothing in this act shall be construed to empower or

authorize the state board of health * * * to interfere in any

manner with the individual’s right to select the physician

or mode of treatment of his choice * * *; providing, however,

that sanitary laws, rules and regulations are complied

with.”

Or Laws 1919, ch 265, § 151.7 At that time, “interfere” com-

monly meant “[t]o enter into, or take a part in, the concerns

of others; to intermeddle; interpose; intervene,” much as it

does today. Webster’s New Int’l Dictionary 1125-26 (1st ed

1910); Webster’s Third New Int’l Dictionary 1178 (unabridged

ed 2002) (defining “interfere” pertinently as “to enter into or

take part in the concerns of others : intermeddle, interpose,

intervene”). “Sanitary,” at the time, generally referred to

6

In this instance, there is no legislative history to consider because those

materials were destroyed in the 1935 fire in the State Capitol. See State v. Wolf,

260 Or App 414, 423, 317 P3d 377 (2013).

7

ORS 431.180 was restructured to its present form in 2015. Or Laws 2015,

ch 736, § 36. The parties have not supplied us with legislative history or other

information suggesting that the 2015 restructuring was intended to alter the

meaning of the statute, and our own research has not yielded any indication that

the 2015 legislature intended to change the meaning of the statute or employ its

terms differently from the 1919 legislature’s use of those terms.

Cite as 329 Or App 460 (2023) 471

health. Webster’s defined “sanitary” as “[o]f or pertaining to

health; designed to secure or preserve health; relating to the

preservation or restoration of health; hygienic, as sanitary

regulations; sanitary science.” Webster’s New Int’l Dictionary

1878 (1st ed 1910) (emphasis in original). Other dictionaries

supplied similar definitions. The Century Dictionary defined

“sanitary” as “[p]ertaining to health or hygiene or the pres-

ervation of health; hygienic; health.” The Century Dictionary

5335 (1911). The Cyclopedic Law Dictionary defined “sani-

tary” as “[p]ertaining to, or designed to secure, sanity or

health; relating to the preservation of health.” Cyclopedic

Law Dictionary 912 (2nd ed 1922). In support of that defi-

nition, it cited People ex rel Longenecker v. Nelson, 133 Ill

565, 579, 27 NE 217, 219 (1890), a case which addressed the

meaning of the term “sanitary” in the context of the phrase

“sanitary district,” and concluded that “sanitary” referred to

the preservation and protection of public health. Id.

Giving “interfere” and “sanitary” their ordinary

meanings in 1919, it would appear that the legislature

intended what is now ORS 431.180 to prohibit health offi-

cials from intermeddling in the medical decisions of individ-

uals, but to preserve the authority of public health officials

to impose general measures to safeguard public health.

Context supports that conclusion. The context of a

statute includes other statutes enacted at the same time.

Hernandez v. Catholic Health Initiatives, 311 Or App 70,

74, 490 P3d 166 (2021). At the same time that it enacted

the prohibition on interfering with an individual’s choice of

treatment, the legislature enacted a number of broad public

health provisions, including provisions authorizing health

authorities to adopt measures to address communicable dis-

eases. For example, the legislature conferred on the state

board of health the power to “make or enforce such rules

and regulations as such board may deem wise and neces-

sary for protection of the health of the people of the commu-

nity or the state” during epidemics. Or Laws 1919, ch 264,

§ 11. Relatedly, the legislature specified that “[n]o pupil,

teacher or janitor shall be permitted to attend any private

parochial or public school when afflicted with any communi-

cable disease * * * except in strict conformity with the rules

472 Free Oregon, Inc. v. Oregon Health Authority

and regulations of the state board of health.” Or Laws 1919,

ch 264, § 23. Given that context, and the common mean-

ing of the word “sanitary” at the time, we think it likely

that the legislature intended the reference to “sanitary” in

what is now ORS 431.180 as a clarification that the right

to choose one’s own mode of treatment was subject to the

general public health laws. If the statute is read as peti-

tioners read it, to exempt individuals from complying with

public health laws when such laws impose requirements at

odds with their preferred choices, then that would seriously

undermine the effectiveness of public health measures.

Reading ORS 431.180 as we have—to prohibit

health officials from intermeddling in the medical decisions

of individuals but to preserve the authority of those offi-

cials to implement and enforce measures to safeguard pub-

lic health—we are unable to conclude that the challenged

rules, on their face, conflict with ORS 431.180. On their face,

the rules do not permit health officials to intermeddle or

intervene in an individual’s healthcare decisions; whether

to obtain a vaccine is left entirely to the individual.

To be sure, the consequences that the rules attach

to the choice not to obtain a vaccine or seek an exemption

can make an individual’s decision whether to obtain a vac-

cine a very difficult personal decision. Those consequences

are exclusion from some workplaces, which is a significant

burden. The rules nevertheless leave the decision whether

to obtain a vaccination, as challenging as it can be, solely in

the hands of the individual, and do not place it in the hands

of health officials.

Finally, even if the consequences that the rules

attach to the failure to obtain a vaccine (or an exemption)

could qualify as “interfer[ing]” with an individual’s choice of

medical or spiritual treatment, those consequences—exclu-

sion from working in healthcare or school settings, settings

with vulnerable populations—are ones that are on their

face aimed at preserving public health, so as to qualify as

“sanitary” requirements, as the legislature that originally

enacted what is now ORS 431.180 would have understood

the term “sanitary.” In that regard, it is worth observing

that it was not uncommon to refer to measures aimed at

Cite as 329 Or App 460 (2023) 473

controlling the spread of disease through isolation or sep-

aration—such as quarantines—as “sanitary” measures at

the time this provision was first enacted. See, e.g., Smiley v.

MacDonald, 60 NW 355, 358 (Neb 1894) (rejecting assertion

that government exceeded its power by entering into a gar-

bage-removal contract with a private contractor, explaining

that “[t]he alleged excess of power is a mere sanitary mea-

sure, as obviously so as the familiar and necessary quar-

antine for the detention of persons exposed to contagious

diseases”).

For these reasons, we are persuaded that the chal-

lenged rules do not, on their face, conflict with ORS 431.180.

As we have mentioned, the scope of our review is limited

to an evaluation of whether the rules, on their face, con-

flict with ORS 431.180. We are not called upon, and are not

permitted within this proceeding, to evaluate the extent to

which a particular application of the rules might contravene

ORS 431.180, and we express no opinion regarding the via-

bility of any such as-applied challenge.

3. The rules do not violate ORS 433.416.

ORS 433.416(1) mandates that employers of “health

care worker[s] at risk of contracting an infectious disease in

the course of employment” provide those employees “preven-

tive immunization for infectious disease if” the “immuniza-

tion is available and is medically appropriate.” Subsection 3

provides, “A worker shall not be required as a condition of

work to be immunized under this section, unless such immu-

nization is otherwise required by federal or state law, rule or

regulation.” (Emphasis added.)

Petitioners argue that “[t]he exception swallows

the rule under this construction, erasing subsection (3)

altogether.” That might be true if OHA had relied on ORS

433.416(3) as the source of its statutory authority to promul-

gate the challenged rules. As discussed above, however, OHA

had authority to adopt the two rules under ORS 413.042 and

ORS 431.110 and, moreover, did not rely on ORS 433.416

as an authorizing statute. Accordingly, the rules at issue

are state rules that “otherwise” require the vaccinations at

issue and, therefore, do not contravene ORS 433.416(3). In

474 Free Oregon, Inc. v. Oregon Health Authority

other words, we agree with the United States District Court

for the District of Oregon that

“at the time [relevant to this matter], there was a state rule

requiring [COVID-19] immunization, OAR 333-019-1010.

Therefore, [p]laintiff’s case falls under the second clause

of [ORS 433.416(3)],” [which states,] “ ‘A worker shall not be

required as a condition of work to be immunized under this

section, unless such immunization is otherwise required by

federal or state law, rule or regulation.’ ”

Morris v. Asante Health Sys., 2023 WL 3766615, *21 (D Or

2023) (emphasis in original).

4. The rules are not preempted by 21 USC § 360bbb-3.

The Supremacy Clause of Article VI of the United

States Constitution provides, in relevant part, that “the

Laws of the United States which shall be made in Pursuance

[of the United States Constitution] * * * shall be the supreme

Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of any

state to the Contrary notwithstanding.” Preemption of state

law by federal law follows when the federal law includes an

express preemption provision, when a congressional statu-

tory scheme “so completely occupies the field” of a specific

subject matter that its preemption intent is implied, and

when preemption intent is implied by “an actual conflict

between state and federal law.” Willis v. Winters, 350 Or 299,

308, 253 P3d 1058 (2011) (citing Crosby v. National Foreign

Trade Council, 530 US 363, 372, 120 S Ct 2288, 147 L Ed 2d

352 (2000)).

Petitioners point to FDCA section 564 as being

in direct conflict with, and thus preempting, the chal-

lenged rules. Section 564 authorizes the Food and Drug

Administration (FDA) to issue an “emergency use” authori-

zation (EUA) for a medical product, such as a vaccine, under

certain emergency circumstances. 21 USC § 360bbb-3(a)

(1). That authorization permits the product to be introduced

into interstate commerce and administered to individuals

even when FDA has not approved the product for more gen-

eral distribution pursuant to its standard review process.

Id. Section 564 directs FDA, “to the extent practicable”

given the emergency circumstances and “as the [agency]

Cite as 329 Or App 460 (2023) 475

finds necessary or appropriate to protect the public health,”

to impose “[a]ppropriate” conditions on each EUA. 21 USC

§ 360bbb-3(e)(1)(A). Some of those conditions are designed to

ensure that recipients of the product “are informed” of cer-

tain things, including “the option to accept or refuse admin-

istration of the product.” 21 USC § 360bbb-3(e)(1)(A)(ii)(III).

We understand petitioners to put forth two argu-

ments to support their contention that the rules contravene

section 564: (1) administration of an EUA-approved product

requires recipients to supply informed consent, which the

contested rules, which allegedly mandate vaccination by an

EUA product, do not allow; and (2) prospective recipients of

an EUA product must be informed of their right to refuse

the product, a requirement which the contested rules violate

because they make the vaccine a condition of employment.

The Sixth Circuit recently addressed and rejected

identical arguments in Norris v. Stanley, 73 F4th 431, 438

(6th Cir 2023), and we find that court’s reasoning per-

suasive. In Norris, university employees challenged their

employer’s implementation and enforcement of a COVID-19

vaccine requirement. 73 F4th at 433. As petitioners do here,

the plaintiffs argued that the university policy conflicted

with section 564 and, consequently, was preempted. Id. at

438. The court disagreed, explaining that

“[t]he EUA statute instructs that, ‘to the extent prac-

ticable given the applicable circumstances,’ the Secretary

of Health and Human Services (HHS) ‘shall, for a person

who carries out any activity for which the authorization is

issued, establish such conditions on an authorization * * *

as the Secretary finds necessary or appropriate to protect

the public health.’ ”

Id. (quoting 21 USC § 360bbb-3(e)(1)(A) (emphasis added)).

Those conditions include

“ensur[ing] that individuals to whom the product is admin-

istered are informed * * * of the option to accept or refuse

administration of the product, of the consequences, if any,

of refusing administration of the product, and of the alter-

natives to the product that are available and of their bene-

fits and risks.”

476 Free Oregon, Inc. v. Oregon Health Authority

21 USC § 360bbb-3(e)(1)(A)(ii)(III). The court explained that

that condition “addresses the interaction between the med-

ical provider and the person receiving the vaccine, not the

interaction between an employer and an employee receiving

a vaccine.” 73 F4th at 438 (citing 21 USC § 360bbb-3(e)(1)(A)

(ii)). In fact, the statute requires those conditions “for a per-

son who carries out any activity for which authorization is

issued,” such as administering the product. See id. (citing 21

USC § 360bbb-3(e)(1)(A)). The court explained, “The statute

is meant to ensure patients’ consent to the pharmaceutical

they are receiving, but this does not mean that [the univer-

sity] cannot require vaccination as a term of employment.” Id.

For the same reasons, we reject petitioners’ preemp-

tion argument. That is, we conclude that section 564 does

not conflict with the OHA rules because OHA is not admin-

istering the responsibilities of HHS and is not a medical

provider that administers the EUA vaccines. Consequently,

OHA’s rules, which impose public health requirements in

specific work environments, are not preempted by section

564.

B. Petitioners have failed to demonstrate that the rules vio-

late the state or federal constitution.

1. Petitioners’ separation-of-powers argument is inade-

quately developed to permit review.

Without pointing to any constitutional provision

or the case law addressing separation-of-powers principles

under the Oregon Constitution, petitioners assert that the

OHA rules “are unconstitutional because they conflict with

and abrogate statutes,” as an agency, “OHA does not have

legislative authority,” and, as a result, the OHA rules are a

violation of the separation-of-powers principle. Noting peti-

tioners’ failure to develop an argument under applicable

authority and relying on Beall Transport Equipment Co. v.

Southern Pacific, 186 Or App 696, 700-01 n 2, 64 P3d 1193,

adh’d to as clarified on recons, 187 Or App 472, 68 P3d 259

(2003), OHA argues that we “should therefore decline to

address petitioners’ separation-of-powers argument because

it is insufficiently developed.” We agree with OHA. On its

face, petitioners’ argument is in tension with a long-standing

Cite as 329 Or App 460 (2023) 477

understanding that a state legislature’s police power to

establish and enforce measures to safeguard public health

is a delegable one.8 In view of petitioners’ failure to develop

an argument that addresses the applicable law or the his-

tory of conferring broad power on health boards, we do not

address that question.

2. Petitioners’ due process and contract clause chal-

lenges are outside the scope of review under ORS

183.400.

Finally, petitioners argue that the OHA rules violate

the Due Process Clause of the United States Constitution

and the Contract Clause of the Oregon Constitution. Both

arguments relate to the impact the challenged rules have

on petitioners’ employment contracts and, in the case of the

Due Process Clause, on their asserted protected property

interests in continued employment. On their face, though,

the rules do not address or affect contracts and, to the extent

petitioners assert that the rules impair particular contracts

and potentially protected property interests, resolution of

that issue is beyond the scope of an ORS 183.400 rule chal-

lenge. See AFSCME Local 2623 v. Dept. of Corrections, 315

Or 74, 79, 843 P2d 409 (1992) (“Aside from questions that

8

As Judge Cooley observed in his treatise on state constitutions, the state police

power encompasses the authority to make “quarantine regulations and health laws

of every description” that “are or may be sometimes carried to the extent of order-

ing the destruction of private property when infected with disease or otherwise

dangerous.” Thomas M. Cooley, A Treatise on the Constitutional Limitations Which

Rest Upon the Legislative Power of the States of the American Union, 584 (1st ed

1868). Cooley noted that such “regulations have generally passed unchallenged.”

Id. at 584-85. Amplifying his discussion of the issue a few years later, Judge Cooley

observed that it was common to confer broad powers on boards of health:

“It is usual, by either general law or by municipal charters, to confer very

extensive powers on local boards of health, under which, when acting in good

faith, they may justify themselves in taking possession of, purifying, or even

destroying, the buildings or other property of the citizen, when the public

health or comfort demands such strong measures.

“* * * * *

“And they may unquestionably be vested with very large powers to establish

pest-houses, and make very stringent regulations to prevent the spread of

contagious diseases.”

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest

Upon the Legislative Power of the States of the American Union, 584 n 2 (3rd ed

1874) (citing, among other cases, Coe v. Schultz, 47 Barb 64 (1866), for proposition

that power to pass sanitary regulations could be conferred on a sanitary board).

478 Free Oregon, Inc. v. Oregon Health Authority

might arise concerning the facts surrounding the process of

adopting a rule[,] * * * judicial review under ORS 183.400 is

limited to the face of the rule and the law pertinent to it.”).

IV. CONCLUSION

For the reasons explained, we reject the challenges

to former OAR 333-019-1010 (January 31, 2022) and for-

mer OAR 333-019-1030 (January 28, 2022), raised in this

proceeding.

Motion to dismiss as moot denied; former OAR

333-019-1010 (Jan 31, 2022) and former OAR 333-019-1030

(Jan 28, 2022) held valid.