Catching up on some of the news over the Christmas holiday, I’ll highlight that the Supreme Court will hear oral argument this Friday on two sets of disputes over the Biden administration’s covid vaccine mandates.
The first set of disputes—the one that has received the lion’s share of attention—concerns an emergency rule (or “temporary standard”) issued by the Occupational Safety and Health Administration that would require employers with 100 or more employees to insist that their employees either be vaccinated or wear masks and arrange for weekly testing. To simplify a complicated procedural history: On December 17, a divided panel of the Sixth Circuit vacated a stay of the OSHA rule. Plaintiffs challenging the OSHA rule have asked the Supreme Court to re-impose the stay. Absent a stay, OSHA will begin enforcing the rule next Monday, January 10.
In my judgment, both Judge Joan Larsen’s dissent from the panel ruling and Chief Judge Jeffrey Sutton’s opinion dissenting from the Sixth Circuit’s denial of initial rehearing en banc make an overwhelming case for staying the OSHA rule. I won’t undertake to summarize their arguments here but instead invite the interested reader to read the opinions or the analyses that Andy McCarthy and Jonathan Adler have offered. This strikes me as a matter on which the Supreme Court ought to be unanimous, but perhaps it’s very naïve to think that it might be.
The second set of disputes concerns a rule issued by the Centers for Medicare and Medicaid Services (CMS) that generally requires that Medicare- and Medicaid-certified providers and suppliers ensure that their workers are vaccinated. In challenges brought by states, two federal district courts entered preliminary injunctions against the CMS rule. The Biden administration is asking the Court to stay those injunctions pending appeal, so it bears the burden of establishing its entitlement to relief. On my admittedly hasty review of one of the district-court rulings, I am doubtful that it will succeed in doing so.
For what it’s worth, I’m very pro-vaccine, and I’m also strongly inclined to believe that the states have broad authority to impose vaccine mandates, but I’m very skeptical that federal agencies have authority to do so, especially in the absence of clear authorization from Congress.