On January 13, the Supreme Court blocked enforcement of the Occupational Health and Safety Administration’s (OSHA) Emergency Temporary Standard (ETS) requiring businesses with 100 or more employees to vaccinate their workers against COVID-19 or implement weekly testing. The Court also upheld the Center for Medicare and Medicaid Services (CMS) Interim Final Rule requiring healthcare workers that received Medicare and Medicaid funding to be vaccinated against COVID-19.
The court’s majority order for National Federation of Independent Businesses v. Department of Labor was unsigned. Justice Neil Gorsuch authored a concurring opinion, which Justices Clarence Thomas and Samuel Alito joined. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan authored a dissenting opinion.
The court’s majority disagreed with the U.S. Court of Appeals for the Sixth Circuit’s decision to lift the stay against the ETS, finding the petitioners were likely to succeed on the merit of their claims that OSHA lacks authority to impose the vaccine mandate.
The majority called OSHA’s requirement that the roughly 84 million Americans subject to the ETS either be vaccinated or undergo weekly testing at their own expense was not a “everyday exercise of federal powers” but a “significant encroachment into the lives—and health—of a vast number of employees.”
OSHA claimed the vaccination mandate would save “over 6,500 lives and prevent hundreds of thousands of hospitalizations” while states and private employees opposed to the mandate argued it would force them to “incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs.”
The majority rejected the idea they should have to weigh this tradeoff.
“In our system of government, that is the responsibility of those chosen by the people through democratic processes. 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. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court’s majority wrote.
In his concurring opinion, Gorsuch invoked the major questions and nondelegation doctrines in making the case for OSHA overstepping its statutory authority with the ETS.
“The nondelegation doctrine,” Gorsuch wrote, “ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” And the major questions doctrine “serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power.”
Gorsuch argued both applied to the case because OSHA’s reading of statute would give the agency almost unlimited discretion and authority. Gorsuch noted OSHA “claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any congressional mandate.” Gorsuch also argued that, if OSHA’s reading of statute were correct, it would still likely “constitute an unconstitutional delegation of legislative authority.”
The dissenting judges disagreed with the majority’s assertion that OSHA had overstepped its statutory authority and argued that the court’s “unelected and unaccountable” members lacked the expertise to assess workplace health and safety issues.
“As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger,” wrote the minority justices.
The majority’s reimplementation of the stay, however, is not the end of legal battles over the vaccine mandate. The Sixth Circuit Court of Appeals will still issue a final ruling on the mandate’s legality.
According to the Portland Press Herald, on the same day the court’s decision was released, Gov. Janet Mills’ office confirmed she will not impose a state-level COVID-19 vaccination mandate on private employers.
In Biden v. Missouri, a 5-4 decision granting an application to stay two injunctions against the CMS’ vaccine requirement allowed the agency’s vaccination rule to go into effect.
The majority opinion, which was unsigned, found that while the exigent circumstances created by a pandemic do not allow federal agencies to exercise powers not granted to them by Congress, they also provide “no grounds for limiting the exercise of authorities the agency has long been recognized to have.”
The majority agreed that Congress has granted the Department of Health and Human Services, the agency that houses CMS, and its secretary authority to “impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” It also found DHHS and its secretary routinely impose “conditions of participation that relate to the qualification and duties of healthcare workers.”
Justices Thomas, Alito, Gorsuch, and Amy Coney Barrett joined a dissenting opinion. Thomas, writing for the minority, argued that he would have denied the application for a stay because the government had not made a “strong showing” that its case for the CMS rule is likely to succeed on the merits.
Thomas argued that the “agglomeration of statutes” to which the government pointed in oral arguments to show authority to issue the rule do not in fact authorize the rule.
“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,” Thomas wrote.
As with the OSHA rule, the majority’s order is not the final authority on whether the CMS vaccine requirement will ultimately be upheld. The court’s decision to grant the stay of the injunction allows the rule to be enforced while challenges against it are ongoing in the U.S. Courts of Appeals for the Fifth and Eighth Circuits.