The decision sends a message to Biden: We’re not against you on everything, but you can’t expect us to ignore the traditional powers of agencies because of Covid.
The Supreme Court this afternoon handed down a split decision on two of the main vaccine mandates issued by the Biden administration. In National Federation of Independent Business v. Department of Labor, the Court struck down the Occupational Safety and Health Administration (OSHA) vaccine mandate for all workers in all industries in workplaces above 100 employees — a sweeping rule covering some 84 million Americans, and exempting only those who wear a mask and get tested weekly. That decision was 6–3, with only the Court’s three liberals dissenting. In Biden v. Missouri, by contrast, the Court upheld the mandates for the staff of 21 types of Medicare and Medicaid health-care providers, enacted by the Centers for Medicare and Medicaid Services (CMS). That decision was 5–4, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to uphold the CMS mandate. The Court has not taken a case on the mandates for federal workers or employees of federal contractors. Both opinions were issued per curiam, without an identified author.
Neither case addressed whether Congress would have had the constitutional power to issue these mandates. Neither addressed any claim by individuals that they had rights to opt out of the mandates. Nor did the Court in the OSHA case rule on the appropriateness of using “emergency” powers on a leisurely schedule.
Instead, the sole question in each case is whether Congress actually gave OSHA and CMS the power to mandate worker vaccinations. In NFIB, the OSHA statute says nothing about vaccines, or about diseases that enter the workplace merely because they are common in the general population. Instead, to use the “Emergency Temporary Standard” under the law, the statute requires proof (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” The Court noted that past emergency rules had regularly failed court challenges; five past OSHA ETS rules were struck down at least in part, and only one upheld in full.
As was signaled at argument, the justices were alarmed by the fact that the OSHA rule was written so broadly that it essentially ignored workplace conditions and instead used the workplace simply as a lever to increase vaccination among the general population — and, perhaps as importantly, to override any state law on the topic:
There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely illusory. . . . The Secretary has estimated, for example, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. . . . The regulation otherwise operates as a blunt instrument. 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 meatpackers. OSHA estimates that 84.2 million employees are subject to its mandate.
That breadth meant that the Court applied the so-called “major questions” doctrine, which is a presumption that a statute does not authorize an “an agency to exercise powers of vast economic and political significance” unless the statute says so clearly. The Court found that the vaccine mandate is much more than just a workplace-specific rule, and enters general public-health territory that OSHA has never previously attempted to claim:
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
The Court left open room for OSHA to issue rules that are more precisely targeted to particular workplaces:
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”
This is precisely correct. We are not just a nation of laws; we are a nation of written laws, and Congress writes them. A de facto national vaccine mandate not only pushes the envelope of Congress’s power, it also does so in ways that eject the states from their traditional police powers over public health and safety. The least we can do is ask that, if such powers are assumed by the federal government, the actual lawmaking branch says it is doing so.
In the CMS case, by contrast, while the statutory authorization was also vague, the subject was narrower and more directly related to providing health care. While that is a questionable basis upon which to read a statute so broadly, Roberts and Kavanaugh were clearly persuaded that the context of the Medicare and Medicaid programs mattered to how broadly the law should be read, and so did the agency’s historical practice:
[E]nsuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19 . . . the longstanding practice of Health and Human Services in implementing the relevant statutory authorities tells a different story [than the challengers]. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not simply sound accounting. Such requirements govern in detail, for instance, the amount of time after admission or surgery within which a hospital patient must be examined and by whom, . . . the procurement, transportation, and transplantation of human kidneys, livers, hearts, lungs, and pancreases, . . . the tasks that may be delegated by a physician to a physician assistant or nurse practitioner, . . . and, most pertinent here, the programs that hospitals must implement to govern the “surveillance, prevention, and control of . . . infectious diseases,”. . . . Moreover, the Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.
Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does. And his response is not a surprising one. Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella. [Quotation omitted].
In the CMS case, the Court was unpersuaded that the rule took too long to be considered an emergency rule: “we cannot say that in this instance the two months the agency took to prepare a 73-page rule constitutes ‘delay’ inconsistent with the Secretary’s finding of good cause.”
At the end of the day, the Court’s split decision sends a message to Joe Biden: We’re not against you on everything, but you can’t just expect us to ignore the traditional powers of agencies just because there’s a pandemic on. Health-care agencies can regulate health care; workplace agencies have to stick to regulating workplaces.