The Supreme Court Ruled on Biden's Vaccine Mandates
The CMS mandate is allowed to continue, the OSHA mandate is not.
This week the Supreme Court struck down the Biden Administration’s vaccine mandate on private-sector employees, enforced through the Occupational Safety and Health Administration (OSHA). The ruling, which supported Biden’s other vaccine mandate on healthcare workers, was much anticipated as both mandates were always likely to end up in front of the Supreme Court, having been constitutionally questionable from the start.
As I wrote about at the time, OSHA submitted an Emergency Temporary Standard (ETS) that required businesses with 100 or more employees to mandate their workers to get vaccinated against Covid-19 or submit to weekly testing. The order, which was announced last fall and was expected to impact 84 million workers, had gone into effect on Monday of this week just days before being struck down. A day after OSHA submitted its ETS, the Court for the 5th Circuit issued a stay on the order, and soon after they extended that stay calling the mandate “fatally flawed”. That decision was reversed, and the OSHA rule was reinstated by the 6th Circuit not long after that, which is how it ended up in the Supreme Court.
The other mandate, issued by the Centers for Medicare & Medicaid Services (CMS), requires healthcare workers in facilities that receive federal funding to be vaccinated against Covid-19 or risk losing their jobs. The mandate affects nearly 17 million people and unlike the OSHA rule, it does not include an option for regular testing instead of getting the vaccine. In my opinion, enforcing a policy that will exacerbate a shortage of healthcare workers — during a pandemic — doesn’t make much sense, especially considering the fact that many of those people likely already have natural immunity, which provides a significant amount of protection against the virus.
Last Friday the Supreme Court heard oral arguments on whether or not these mandates should be allowed to continue and during those arguments, Justice Sonia Sotomayor made some questionable remarks. For example, she grossly exaggerated the number of severe infections of Covid-19 among children. "We have over 100,000 children,” she stated, “which we’ve never had before, in serious condition, and many on ventilators.” That exceeds the number of children that have been hospitalized throughout the entire pandemic, and the number of children currently hospitalized is around 4,000. While that is a large amount, it’s nowhere near what Justice Sotomayor suggested, and it’s also important to keep in mind that many people considered to be hospitalized Covid patients are in the hospital for other reasons and inadvertently end up testing positive for the virus; in other words, they're hospitalized with Covid, rather than from Covid, which brings the official numbers into question.
The other notable statement made by Justice Sotomayor was in response to Ohio Solicitor General Benjamin Flowers after he argued that states may have the legal authority to enforce vaccine mandates, but that the federal government does not. “I’m not sure I understand the distinction—why states would have the power but the federal government wouldn’t,” she said. That statement is disconcerting coming from a Supreme Court Justice, whose job consists of interpreting the Constitution to decide when laws are constitutional and when they’re not.
The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The flaw in Justice Sotomayor’s statement should be glaringly obvious. The federal government does not have the authority to enforce a national vaccine mandate. And even if it did, it would have to be through Congress passing actual legislation, not through a federal agency acting under the Executive Branch.
One of the most cited examples of legal precedent for a vaccine mandate is Jacobson v. Massachusetts, a case from 1905. The state of Massachusetts mandated that citizens within that state receive a vaccine against smallpox and the Supreme Court ruled 7-2 in favor of the law. That ruling does provide a precedent for states to mandate vaccines, but it does not provide one for a nationwide mandate. Some other key aspects of that ruling include the fact that it allowed people to refuse vaccination if they paid a $5 fine (a little over $150 today) and, unlike the current mandates, it was an actual law in question, not an executive order.
In their decision for National Federation of Independent Businesses v. the Department of Labor, The Supreme Court ruled against the OSHA mandate 6-3 on Thursday, nearly a week after initially hearing oral arguments. The vote was entirely split between ideological lines with all of the conservative judges voting against the mandate and all of the liberal judges voting for it. The Court ruled that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.” Their ruling also stated that “Although Covid-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.”
The Court’s decision for the CMS mandate in Biden v. Missouri wasn’t so ideologically split, however. They ruled 5-4 in favor of the order, claiming that the Secretary of Health and Human Services has the authority to impose conditions on facilities that receive Medicare and Medicaid funding. The Court also said those same facilities have always been required to wear gloves, sterilize instruments, and wash their hands; essentially saying that because they consider getting vaccinated as just another way to prevent the spread of disease, it’s one that healthcare workers who receive federal funds will have to adhere to.
While I see the ruling against OSHA as a glimmer of hope that freedom and personal choice will be able to continue a little longer, I can’t help but be disappointed about the thought of millions of healthcare workers being forced to choose between their job or their autonomy. It’s a fair point to say that because those facilities receive federal funding, the federal government should have some say in how they operate; but the idea that the very same nurses and doctors who tirelessly worked through all of 2020 — before the vaccine — are somehow unable to safely do so now, just doesn’t seem to make any sense to me.
The President should not be able to use executive orders and unelected bureaucrats to circumvent the limits on his authority, and even one of these mandates being allowed to continue sets a dangerous precedent. While the Supreme Court seemed to understand that in one ruling, they failed to do so in the other.
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