Will Two Biden Vaccine Mandates Rise or Fall Together?

The Supreme Court is considering President Biden’s two vaccine mandates — one issued through the Occupational Safety and Health Administration (OSHA), the other through the Department of Health and Human Services (HHS) and its Centers for Medicare and Medicaid Services (CMS). Like most commentators, I’ve been discussing the two as if they were virtually indistinguishable. But there are salient distinctions, and the question is whether they will make a difference: Must the mandates either rise or fall together, or would it be rational to uphold one while invalidating the other?

There are understandable reasons for thinking of them as a unit. The Court, after all, consolidated the mandate cases because they raise many of the same questions. And as I related in an analysis of the cases’ oral arguments on Friday, Chief Justice John Roberts (along with other justices) took note of the administration’s “work-around” strategy (to quote the term Biden’s chief of staff, Ron Klain, must rue having retweeted).

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.

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The Supreme Court is considering President Biden’s two vaccine mandates — one issued through the Occupational Safety and Health Administration (OSHA), the other through the Department of Health and Human Services (HHS) and its Centers for Medicare and Medicaid Services (CMS). Like most commentators, I’ve been discussing the two as if they were virtually indistinguishable. But there are salient distinctions, and the question is whether they will make a difference: Must the mandates either rise or fall together, or would it be rational to uphold one while invalidating the other?

There are understandable reasons for thinking of them as a unit. The Court, after all, consolidated the mandate cases because they raise many of the same questions. And as I related in an analysis of the cases’ oral arguments on Friday, Chief Justice John Roberts (along with other justices) took note of the administration’s “work-around” strategy (to quote the term Biden’s chief of staff, Ron Klain, must rue having retweeted).

About the Author

Andrew C. McCarthy

Andrew C. McCarthy is a senior fellow at National Review Institute, an NR contributing editor, and author of Ball of Collusion: The Plot to Rig an Election and Destroy a Presidency.