The Corner

Law & the Courts

Vaccine-Mandate Decision Bodes Poorly for Federal-Contractor Mandate

(Matt Anderson/Getty Images)

As I noted in my initial writeup of the vaccine-mandate decisions, the Court gave the benefit of the doubt in reading vague statutory language to CMS, but not OSHA, in large part on what amounted to a family-resemblance test: Because CMS is in the health-care business, and OSHA isn’t, it was more reasonable to read CMS’s statutory authority as covering vaccination of health-care workers against infectious diseases. The CMS decision certainly wasn’t about having clearer statutory language. As Justice Samuel Alito’s dissent noted:

The support for the argument that the Federal Government possesses such authority is so obscure that the main argument now pressed by the Government — that the authority is conferred by a hodgepodge of scattered provisions — was not prominently set out by the Government until its reply brief in this Court. Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date.

That “look at the purpose of the statute” approach reeks of things Chief Justice John Roberts has done in the past, most notably in the notorious and now-discredited case of King v. Burwell. 

If you are reading tea leaves, that approach bodes poorly for the survival in court of the third major Biden administration vaccine mandate: the one imposed on employees of federal-government contractors and subcontractors, which is based on the general procurement authority of the federal government. That mandate is just as broad-brush as the OSHA mandate, and just as disconnected from any law regulating the provision of health care.

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