Background

This federal vaccine mandate case went to the Supreme Court on an emergency basis. [1]

The suit was in response to the implementation of the vaccination mandate that the Occupational Safety and Health Administration had issued in November 2021, requiring all businesses with 100 or more employees (with very limited exceptions) to direct their employees be vaccinated against COVID-19 or wear a mask at work and provide weekly negative tests for the disease. [1]

• Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country.

OSHA published its vaccine mandate on November 5, 2021. Scores of parties—including States, businesses, trade groups, and nonprofit organizations—filed petitions for review, with at least one petition arriving in each regional Court of Appeals. The cases were consolidated in the Sixth Circuit, which was selected at random pursuant to 28U. S. C. §2112(a). [2]

• The Fifth Circuit initially entered a stay. pending further judicial review. BST Holdings, 17 F. 4th 604. It held that the mandate likely exceeded OSHA’s statutory authority, raised separation-of-powers concerns in the absence of a clear delegation from Congress, and was not properly tailored to the risks facing different types of workers and workplaces. [2]
• But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect.

Two things happened. First, many of the petitioners— 5 Cite as: 595 U. S. ____ (2022) Per Curiam nearly 60 in all—requested initial hearing en banc. Second, OSHA asked the Court of Appeals to vacate the Fifth Circuit’s existing stay. The Sixth Circuit denied the request for initial hearing en banc by an evenly divided 8-to-8 vote. In re MCP No. 165, 20 F. 4th 264 (2021). Chief Judge Sutton dissented, joined by seven of his colleagues. He reasoned that the Secretary’s “broad assertions of administrative power demand unmistakable legislative support,” which he found lacking. Id., at 268. A three-judge panel then dissolved the Fifth Circuit’s stay, holding that OSHA’s mandate was likely consistent with the agency’s statutory and constitutional authority. See In re MCP No. 165, 2021 WL 5989357, ___ F. 4th ___ (CA6 2021). Judge Larsen dissented.

• Applicants now seek emergency relief from this (Supreme) Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. [2]

Various parties then filed applications in this (the Supreme) Court re-questing to stay OSHA’s emergency standard. The Supreme Court consolidated two of those applications—one from the National Federation of Independent Business, and one from a coalition of States—and heard expedited argument on January 7, 2022 [2]

The Occupational Safety and Health Act [2]

Congress enacted the Occupational Safety and Health Act in 1970. 84 Stat. 1590, 29 U. S. C. §651 et seq. The Act created the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor and under the supervision of its Secretary. As its name suggests, OSHA is tasked with ensuring occupational safety—that is, “safe and healthful working conditions.” §651(b). It does so by enforcing occupational safety and health standards promulgated by the Secretary. §655(b). Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” §652(8) (emphasis added). They must also be developed using a rigorous process that includes notice, comment, and an opportunity fora public hearing. §655(b).

The Act contains an exception to those ordinary notice-and-comment procedures for “emergency temporary standards.” §655(c)(1). Such standards may “take immediate effect upon publication in the Federal Register.” Ibid. They are permissible, however, only in the narrowest of circumstances: the Secretary must show

(1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and

(2) that the “emergency standard is necessary to protect employees from such danger.” Ibid. Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full.See BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F. 4th 604, 609 (CA5 2021).

Significance

This case  is significant as it tests the notion that the government or its agents have the power to forcibly vaccinate the people against their will.

Oral Arguments

The focus of the hearing was whether to stay or to grant temporary injunctions requested by plaintiffs in a number of lawsuits challenging the emergency mandates for millions of Americans. [3]

According to The New York Times, members of the Supreme Court’s conservative majority appeared skeptical that the Biden administration had the legal power to impose a mandate requiring the nation’s large employers to require workers to be vaccinated against COVID or to undergo frequent testing. [3]

But in a separate challenge regarding the U.S. Department of Health and Human Services’ Centers for Medicare & Medicaid Services (CMS) mandate for healthcare workers and facilities, some justices appeared more open to vaccine requirements for certain healthcare workers, CNN reported. [3]

The more liberal justices defended the government’s ability to impose vaccine mandates, citing concerns over Omicron, which Justice Sonya Sotomayor claimed was more deadly to the unvaccinated than the Delta variant. [3]

Sotomayor also expressed concern over the 100,000 children she said were hospitalized, many of whom are on ventilators. [3]

“We have over 100,000 children,” Justice Sotomayor said, “which we’ve never had before, in serious condition and many on ventilators. So saying it’s a workplace variant just underscores the fact that without some workplace rules with respect to vaccines or encouraging vaccines because this is not a vaccine mandate.”

The liberal justices said vaccine mandates were a needed response to the public health crisis, which Justice Stephen Breyer said caused 750,000 million new COVID cases yesterday in the U.S. — more than double the U.S. population. [3]

Chief Justice John Roberts, Jr. and Justice Neil Gorsuch said the states and Congress, rather than a federal agency, were better equipped to address the pandemic in the nation’s workplaces. [3]

Justice Amy Coney Barrett said the OSHA regulation appeared to reach too broadly in covering all large employers, while Justices Gorsuch and Justice Brett Kavanaugh suggested the governing statute had not authorized the agency to impose the mandate clearly, given what was at stake politically and economically. [3]

Scott Keller, attorney for the National Federation of Independent Business, argued the OSHA regulations had originally been passed to protect workers from unvaccinated coworkers and were now obsolete due to “CDC guidance contradicting foundational assumptions” of the regulations. [3]

“Yes, that may be true, but we are now having deaths at an unprecedented amount, catching COVID keeps people out of the workplace for extraordinary periods of time,” Justice Sotomayor responded. [3]

Justice Elena Kagan suggested getting a COVID vaccine reduces the spread of COVID, a claim questioned by the rising number of breakthrough cases worldwide. Justice Kagan’s opinion is that “this is the policy that is most geared to stopping all this.” [3]

“There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves,” Justice Kagan said. “So, you know, whatever necessary means, whatever grave means, why isn’t this necessary and grave?” [3]

Justice Stephen Breyer suggested being vaccinated would stop people from transmitting the virus to others, and the idea that more people would leave the workforce due to the mandates was moot because “more may quit when they discover they have to work together with unvaccinated people because that means they may get the disease.” [3]

Justice Breyer said he would find it “unbelievable that it would be in the public interest to stop these vaccinations.” [3]

• Watch the entire Supreme Court Oral Argument on COVID-19 Vaccine Mandate for Large Employers (video)

Decision

Anticipated to have applied to approximately 84 million employees—and by a 6-3 vote, the Supreme Court in National Federation of Independent Business v. OSHA stayed the implementation of the vaccination mandate that the Occupational Safety and Health Administration had issued in November 2021. [1]

In an unsigned opinion, the majority concluded that the government was not likely to prevail on its argument that OSHA possesses the authority to issue the vaccination mandate. It wrote that neither OSHA nor Congress had ever imposed such a requirement and that, “although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.” [1]

“As its name suggests,” the court explained, “OSHA is tasked with ensuring occupational safety—that is, ‘safe and healthful working conditions.’” That means OSHA is only empowered “to set workplace safety standards, not broad public health measures,” and according to the justices, “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.” [1]

The court classified the COVID-19 virus as not an “occupational hazard,” but a “universal risk” that “is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” [1]

Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, filed a concurring opinion. He emphasized that under the court’s “Major Questions Doctrine,” the court will not presume that Congress empowered an agency to resolve a question of broad economic or social policy without expressly authorizing in the statute’s text the authority to do so. The Occupational Safety and Health Act, he concluded, grants OSHA no such power. [1]

They conclude their ruling: “The question before us is not how to respond to the pandemic, but who holds the power to do so.” [2]

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, dissented. Breyer concluded that because “COVID-19, in short, is a menace in work settings,” as proved by the number of people it has sickened or killed, OSHA could adopt a vaccination or mask-and-test requirement for businesses. [1]

Aftermath

• The Heritage Foundation (which had filed an application with the Supreme Court to halt the OSHA mandate), reacted to the news Thursday. Heritage President Kevin Roberts trumpeted the victory in a public statement, saying: [1]

The federal government has no business dictating the private and personal health care decisions of tens of millions of Americans, nor does it have the authority to coerce employers into collecting protected health care data on their employees. By striking down the Biden regime’s unlawful COVID-19 vaccine mandate, the Supreme Court has signaled its agreement with this basic tenet of a well-functioning and free society.

• While the OSHA mandate is stayed for now, litigation on the merits of the government’s employer vaccine rule will continue in the lower court (the 6th U.S. Circuit Court of Appeals).

Further Research

Court Documents:

• Read the Court Ruling
• Supreme Court Oral Argument on COVID-19 Vaccine Mandate for Large Employers (video)

In the news:

• Supreme Court Strikes Down OSHA Mandate, Says Vaccine Mandates for Healthcare Workers Can Proceed
• ‘Huge Win’: Business Leaders, Legal Experts Celebrate as Supreme Court Blocks Biden Vaccine Mandate 
• 6 Details That Reveal Long Reach of Biden’s Vaccine Mandate
• Major Questions About the “Major Questions” Doctrine
• Sotomayor’s Ignorance of COVID-19 Facts
• Supreme Court Judges Spar Over Vaccine Mandates, Twitter Erupts Over False Claims

Media

Keyword

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