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Roberts, Kavanaugh Provide Swing Votes as Supreme Court Blocks Biden Workplace Vaccine Mandate, Allows Vaccine Mandate for Health Care Providers


Then-president-elect Joe Biden received a COVID-19 vaccination from nurse practitioner Tabe Mase at ChristianaCare Christiana Hospital on December 21, 2020 in Newark, Del.

The Supreme Court of the United States on Thursday issued a stay against a generalized workplace COVID-19 vaccination mandate championed by the administration of President Joe Biden — but it allowed a similar mandate involving only Medicare and Medicaid providers to go into effect. The ripple effects, the decisions themselves noted, will affect millions of workers around the country.

The court issued both matters as unsigned per curiam decisions. We will discuss each decision in turn below. Both pitted the high court’s liberal justices against the court’s conservatives. Chief Justice John Roberts and Justice Brett Kavanaugh provided the swing votes that kept the mandate for health care workers in effect; both justices voted to rubbish the mandates for non-health care workers in general.

The Workplace Mandate

The general workplace mandate was aimed at large employers and was promulgated by OSHA, the Occupational Safety and Health Administration. At issue in the case was not the efficacy of the vaccines themselves or the seriousness of the pandemic — but rather whether OSHA had the authority to require inoculations via the Administrative Procedure Act.

The court skewered OSHA for using its power to implement “emergency temporary standards” to pass a vaccine mandate.

“Prior to the emergence of COVID-19, the Secretary [of the Department of Labor] had used this power just nine times before (and never to issue a rule as broad as this one),” the high court noted. “Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full.”

The court was not about to grant the Biden Department of Labor a win in this matter.

“The regulation . . . operates as a blunt instrument,” the justices said. “It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meat-packers. OSHA estimates that 84.2 million employees are subject to its mandate.”

The court also skewered OSHA for passing such sweeping unique and novel regulations given the agency’s core mission (emphases in the original):

As its name suggests, OSHA is tasked with ensuring occupational safety — that is, “safe and healthful working conditions.” It does so by enforcing occupational safety and health standards promulgated by the Secretary. Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” They must also be developed using a rigorous pro- cess that includes notice, comment, and an opportunity for a public hearing.

“It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace,” the court later said.

In other words, OSHA’s leaders under the Biden Administration stretched their regulatory mandates too far beyond the pale, the court rationed.

The court was also moved by complaints from a collection of politically conservative state administrations and from employers — which suggested they collectively were being forced “to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.”

“Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the majority decided.  “Requiring the vaccination of 84 million Americans, selected simply be- cause they work for employers with more than 100 employees, certainly falls in the latter category.”

The court’s opening salvo retraced the history of the mandate and the procedure used to accomplish it.

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vac- cine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation ad- dressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.

Justices Neil Gorsuch, Samuel Alito, and Clarence Thomas concurred:

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing work- place safety, may mandate the vaccination or regular test- ing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

The court’s three liberal justices — Stephen Breyer, Sonia Sotomayor, and Elena Kagan — predictably dissented by pointing squarely to the workplace effects of COVID-19:

Every day, COVID–19 poses grave dangers to the citizens of this country—and particularly, to its workers. The disease has by now killed almost 1 million Americans and hospitalized almost 4 million. It spreads by person-to-person contact in confined indoor spaces, so causes harm in nearly all workplace environments. And in those environments, more than any others, individuals have little control, and therefore little capacity to mitigate risk. COVID–19, in short, is a menace in work settings. The proof is all around us: Since the disease’s onset, most Americans have seen their workplaces transformed.

“In our view, the Court’s order seriously misapplies the applicable legal standards,” the dissent later said in blistering fashion. “And in so doing, it stymies the Federal Government’s ability to counter the unparalleled threat that COVID–19 poses to our Nation’s workers. Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies.”

Elsewhere, the dissent said OSHA officials were “well within the scope of their authority” to pass the regulation on an emergency basis.

The nine Supreme Court justices pose for a group picture in 2021

The Medicare and Medicaid Mandate

Another of the Biden Administration’s Covid vaccine mandates involved swiftly enacted “interim final” rules aimed at medical providers compensated through the federal CMS, or Centers for Medicare and Medicaid, systems. The court allowed the health care provider mandates to fully take effect — but by a narrow 5-4 margin.

Justices Thomas, Alito, Gorsuch, and Amy Coney Barrett dissented.  One of the dissents was penned by Thomas; the other was written by Alito.  All four of the dissenters joined each of the opinions.

The per curiam majority was therefore made up of Chief Justice Roberts and justices Kavanaugh, Breyer, Kagan, and Sotomayor.  Kavanaugh and Roberts were therefore the swing votes from the previous yet concomitant case, and both swung together.

“In November 2021, the Secretary [of Health and Human Services, or HHS] announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff — unless exempt for medical or religious reasons — are vaccinated against COVID–19,” the court noted. “Two District Courts enjoined enforcement of the rule, and the Government now asks us to stay those injunctions. Agreeing that it is entitled to such relief, we grant the applications.”

Here, the court decided, “the most basic” function of the Department of Health and Human Services was “to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.”  The court concluded that a clear Congressional mandate was at play in health regulations promulgated by HHS pursuant to Medicare and Medicaid funding.  Specifically, “Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such ‘requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution,'” the court noted.

Or, in other words, CMS/HHS had the power to pass these mandates.

With what appears to be a nod to the preceding generalized workplace mandate decision, the court concluded:

The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. Because the latter principle governs in these cases, the applications for a stay presented to JUSTICE ALITO and JUSTICE KAVANAUGH and by them referred to the Court are granted.

The four-justice dissent by the aforementioned collection of conservative jurists — with Thomas leading the charge — argued that the Biden administration had “not made a strong showing that it has statutory authority to issue the rule” at issue.

“Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements,” the Thomas dissent wrote. “As a result, the Government has effectively mandated vaccination for 10 million healthcare workers.”

The Thomas dissent also accused government lawyers of citing a mere “hodgepodge of provisions” as support for the mandate.

Thomas, et al., nonetheless conceded the broader point about the importance of vaccines while pointing readers to the narrow issue at play:

These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.

The majority accused Thomas of reading the CMS/HHS authorizing statutes too narrowly. According to a preemptive swipe, Thomas was “contending that the seemingly broad language” of the authorizing statutes allowed “the Secretary to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.”  The majority disagreed with the dissenters’ view of the statutes as merely perfunctory.

Alito spoke Glowingly of Thomas’s dissent before tearing off on its own tangent:

I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired. The support for the argument that the Federal Government possesses such authority is so obscure that the main argument now pressed by the Government—that the authority is conferred by a hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court.

Alito also accused the Biden administration of adopting a “regulate first and listen later” attitude.  Such criticism is not new, however, as to emergency administrative rulemaking procedures.

White House Reaction

President Biden issued a statement in reaction the rulings.

“My administration began to institute vaccination requirements last July, when after months of making vaccinations free and widely available, 90 million Americans were still unvaccinated,” the statement says.  “Today, that number is down to under 35 million.”

It continues:

These vaccine requirements applied to members of the Armed Forces, federal workers and contractors, health care workers, and employees in large firms. Had my administration not put vaccination requirements in place, we would be now experiencing a higher death toll from COVID-19 and even more hospitalizations.

Today’s decision by the Supreme Court to uphold the requirement for health care workers will save lives: the lives of patients who seek care in medical facilities, as well as the lives of doctors, nurses, and others who work there. It will cover 10.4 million health care workers at 76,000 medical facilities. We will enforce it.

At the same time, I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law. This emergency standard allowed employers to require vaccinations or to permit workers to refuse to be vaccinated, so long as they were tested once a week and wore a mask at work: a very modest burden.

As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.

Read the court’s decisions in both cases below:

[Editor’s note: legal citations have been removed from some quotes.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.