The Supreme Court and vaccine mandates: Three questions

·6 min read

The Supreme Court on Thursday prevented the Biden administration from enforcing its mandate that employees of large firms must be vaccinated against COVID-19 or regularly test for the virus.

The move effectively ends the government’s most ambitious attempt to counter rising COVID-19 cases by pushing unvaccinated Americans to get shots. The vaccine-or-test requirement, issued by the Department of Labor’s Occupational Safety and Health Administration, would have covered 84 million people, according to OSHA figures.

At the same time the high court allowed the administration to proceed with a smaller Department of Health and Human Services mandate that requires most health care workers at facilities that receive federal money to be vaccinated. This rule would cover about 10 million people, according to the administration. In many of these facilities 35% or more of the staff remain unvaccinated, the court majority noted in its opinion.

Combined, the rulings present a complex Supreme Court majority attitude toward government activities that has far-reaching implications for the future. Here are three key questions about what the justices ruled:

What’s the court’s reasoning?

In blocking enforcement of the employee mandate, a majority of six justices held that OSHA had gone beyond the bounds of its own mandate by in essence acting as a general public health agency.

The congressional statute which established OSHA tasked it with “ensuring occupational safety” in order to “provide safe and healthful employment,” noted the unsigned majority opinion.

Nowhere has Congress authorized the agency “regulate the hazards of daily life,” wrote the majority. OSHA might be able to oversee the working conditions of researchers who deal with the COVID-19 virus, or workers in particularly cramped or crowded conditions. But the administration’s indiscriminate approach fails to make this distinction, according to the majority.

“The court is not inherently opposed to vaccine mandates or requirements, but they want to see it very closely tied to a strong reasoning and to agencies that handle health care,” says Carmel Shachar, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

In dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan said that the majority opinion was in fact preventing OSHA from accomplishing its core mission – ensuring safety for workers on the job – simply because doing so would have effects on their safety outside the workplace as well.

Workers are uniquely vulnerable to COVID-19, the dissenting justices wrote. The virus spreads by person-to-person contact in confined indoor spaces. On the job, workers have little control over their environment, and thus little capacity to mitigate risk.

The majority is imposing a limit on OSHA’s authority found nowhere in its governing statute, according to Mr. Breyer, Ms. Sotomayor, and Ms. Kagan.

“OSHA’s responsibility to mitigate the harms of COVID-19 in the typical workplace do not diminish just because the disease also endangers people in other settings,” dissenters wrote.

The high court majority reasoning in the HHS case was a reverse image of its OSHA ruling. One of the core powers of the department’s Medicare and Medicaid activities is to ensure that health care providers safeguard patients, the majority wrote. HHS secretaries over the years have “established long lists of detailed conditions with which facilities must comply to be eligible to receive Medicare and Medicaid funds,” according to the majority opinion.

The COVID-19 vaccine mandate for health workers thus falls well within the authority that HHS has been granted by Congress, wrote the majority.

“That very critical difference ... is that [HHS] is doling out funds. They’re saying to major health care providers, if you want these federal funds, here’s the conditions you meet. OSHA’s not doling out funds,” says James Hodge, director of the Center for Public Health Law and Policy at Arizona State University.

What are the major implications?

In the wake of the OSHA ruling, other U.S. government executive agencies may be facing a new era in which their ability to act on their own could be circumscribed, say some experts.

Much of the nation’s actual day-to-day governance takes place in administrative agencies. The Environmental Protection Agency, National Transportation Safety Board, OSHA, and similar entities decide crucial questions about pollution, highway safety, workplace protections, and so on. This is particularly true given today’s gridlocked congressional politics. Lawmakers are unable or unwilling to provide guidance on such matters on their own.

But conservatives have chafed at the growing power of the administrative state – “deep state,” some might call it – and the OSHA decision could reflect that. A newly empowered conservative Supreme Court majority might steer the law governing agencies in new directions.

OSHA was trying to respond in a big way to a big problem, says Cary Coglianese, law professor, political scientist, and director of the Program on Regulation at the University of Pennsylvania Carey Law School.

But the court on Thursday pretty clearly indicated that such radical change in a regulatory context will be viewed skeptically.

“It’s clear that a majority of the court will be suspicious of grand exercises of regulatory authority by federal agencies,” says Professor Coglianese.

Going forward, regulators can’t expect that old authorizing statutes will suffice if they want to expand activities, he says. Congress could pass new laws giving them new powers. But with Washington politics in its current polarized state, that seems very unlikely.

“This has implications far beyond just the OSHA vaccine ... mandate,” says Professor Coglianese. “This has implications for climate change. This has implications for any area that requires some big governmental intervention, particularly regulatory intervention, where there isn’t some new legislation squarely directed at that problem.”

What happens now?

The Supreme Court’s Thursday OSHA decision prevented the Biden administration from beginning to enforce its major employer vaccine mandate. The ruling sent the case back to the 6th Circuit Court of Appeals for further consideration on the merits in light of what the Supreme Court ruled. High court justices suggested that a narrower approach might pass judicial muster. But the administration may just move on.

“For all practical purposes, as a legal matter, it’s ... dead in the water,” says Professor Coglianese.

Biden administration estimates held that the employer vaccine mandate, if implemented, would have prevented hundreds of thousands of hospitalizations, and saved more than 6,500 lives.

As a practical matter, the human impact of the mandate’s downfall might be less than those projections indicate. The mere threat of a federal mandate may have pushed thousands of workers to get a shot, despite the fact that OSHA hadn’t begun enforcement, and seemed a long way from doing so.

Many businesses are already requiring vaccination for all of their employees, so the lack of a federal requirement may not have enormous effects, but “this is a setback,” says Professor Shachar of Harvard Law School.

One thing is clear: Companies have lost a potentially useful scapegoat.

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