Unpacking Supreme Court justices’ reasoning in vaccination warrants

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Unsplash/Hakan Nural

For nearly 100 million American workers gasping for an answer, a Supreme Court ruling on Thursday brought good news to many, but not all.

In a rare late-day opinion post, the Supreme Court released its decisions in two federal vaccine mandate cases that have been rushed to court.

In the first case — which should have applied to approximately 84 million employees — and by a vote of 6 to 3, the Supreme Court of National Federation of Independent Businesses vs. OSHA suspended implementation of the vaccination mandate that the Occupational Safety and Health Administration issued in November 2021, requiring all businesses with 100 or more employees (with very limited exceptions) to order their employees to get vaccinated against COVID-19 or wear a mask at work and providing weekly negative tests for the disease.

In an unsigned opinion, the majority concluded that the government was unlikely to prevail on its argument that OSHA has the authority to issue the vaccination warrant. He wrote that neither OSHA nor Congress had ever imposed such a requirement and that, “although Congress has enacted significant legislation regarding the COVID-19 pandemic, it has refused to enact any measures similar to this that OSHA has promulgated here”.

“As its name suggests,” the court explained, “OSHA is responsible for ensuring workplace safety – that is, ‘safe and healthy working conditions.'” and according to the judges , “no provision of the law deals more generally with public health, which is outside OSHA’s sphere of expertise”.

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

Judge Neil Gorsuch, joined by Judges Clarence Thomas and Samuel Alito, filed a concurring opinion. He pointed out that under the court’s decision “Major Issues Doctrinethe court will not presume that Congress has empowered an agency to resolve a general economic or social policy issue without expressly authorizing in the text of the statute the authority to do so. The Occupational Safety and Health Act, he concluded, does not grant such power to OSHA.

Justice Stephen Breyer, joined by Justices Sonia Sotomayor and Elena Kagan, dissented. Breyer concluded that because “COVID-19, in short, is a threat in workplaces,” as evidenced by the number of people it has sickened or killed, OSHA could enact a vaccination requirement or masks and tests for businesses.

The Daily Signal’s parent organization, The Heritage Foundation (which had filed a petition with the Supreme Court to stop OSHA mandate), reacted to the news on Thursday. Legacy Chairman Kevin Roberts trumpeted victory in a public statement, saying:

The federal government does not have to dictate the private and personal health decisions of tens of millions of Americans, nor does it have the power to compel employers to collect protected health data about their employees. By striking down the Biden regime’s illegal COVID-19 vaccine mandate, the Supreme Court has endorsed this fundamental principle of a free and well-functioning society.

Although OSHA’s mandate is suspended for the time being, litigation on the merits of the government’s employer vaccine rule will continue in the lower court (the 6th United States Circuit Court of Appeals).

In its afternoon counter-opinion, the court — in Biden vs. Missouri, another unsigned opinion, but this time, by a 5-4 vote – allowed the Department of Health and Human Services (administered by the Centers for Medicare and Medicaid Services) vaccination mandate for facility workers federally funded health care programs to take effect.

The court wrote that a global pandemic “provides[s] no reason to limit the exercise of powers which the agency has long been recognized for”. He noted that as a condition for receiving federal funds, Congress authorized the secretary to enact “requirements such as [he] deems necessary in the interests of the health and safety of persons receiving services in the facility. »

The court noted that this would be “the complete opposite of effective and efficient administration for a facility that is supposed to care for people to make them sick with COVID-19.” He also concluded that the vaccine rule was not, as the states had claimed, arbitrary and capricious, and that the longer and more complicated notice and comment period required by the Administrative Procedure Act (guaranteeing transparent regulation by the federal government) would have been impossible.

Thomas, joined by Gorsuch, Alito and Judge Amy Coney Barrett, dissented, saying the statutory provisions the government relied on did not support its vaccine rule.

The justices noted that these provisions direct the “administration” of Medicare and Medicaid and are those that serve the “practical management and direction” of these programs, but there was no connection to this administration and a rule requiring “ millions of healthcare workers to undergo an unwanted medical procedure that cannot be removed at the end of the shift.

Thomas wrote that the government had a shaky basis for its virtually unlimited vaccination through the Department of Health and Human Services, and if Congress had wanted to grant the agency the power to impose a vaccination mandate in all types of establishments and upset the state-federal balance. (because only the state has the police power to impose vaccination), it would have expressly authorized one.

In both cases, the question before the court was not how to respond to the pandemic, but who holds the power to do so.

For now – and until the end of the litigation in the lower appeals courts – the answer is clear.


Originally posted on The daily signal.

Sarah Parshall Perry is a legal scholar at the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

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