This article about recent US Supreme Court rulings on the Biden administration’s proposed vaccine mandates was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease. She is also a member of the Vaccines Working Group on Ethics and Policy.
On January 13, 2022, the US Supreme Court, in two different decisions, struck down the Biden administration’s Occupational Safety and Health Administration (OSHA)’s Emergency Temporary Standard (ETS) requiring employers to create a plan that requires employees to vaccinate or test and mask in the workplace and upheld a rule by the Centers for Medicaid and Medicare (CMS) requiring 15 different types of healthcare providers to vaccine mandates for their employees (subject to required medical and religious accommodations).
This post explains and analyzes both decisions regarding the Biden administration’s proposed vaccine mandates.
Biden administration vaccine mandates — the OSHA decision
As a reminder, I have written before about the 5th Circuit decision to stay the OSHA ETS – put the Biden administration’s vaccine mandates on hold. The short version is that at the time I thought there were potential grounds to put the ETS on hold, but the decision as it stood there was not well-founded.
In between, the cases against OSHA were subjected to a lottery to decide which circuit would hear them. The Sixth Circuit ended up hearing the case, and a divided panel of that circuit, in a two-to-one decision, decided to remove the stay – to let the ETS go into effect. A range of parties appealed to the Supreme Court, asking the Court to reinstate the stay. During its oral argument on the case on January 7, 2022, my impression – as I told several people – was that there were more than five votes for finding against OSHA.
On January 13, 2022, the Supreme Court reinstated the stay, putting the ETS on hold, because it found that plaintiffs had a good chance of winning on the merits and the balance of interest favored them. Although the decision was only on whether to put the measure on hold while litigation is ongoing, the nature of the decision – finding that OSHA did not have the authority to issue the ETS – essentially killed the ETS and Biden administration’s vaccine mandates through OSHA.
Six justices supported the decision. Three justices wrote a concurrence – a decision in agreement – that would have struck down the ETS on even stronger grounds. And three justices wrote a joint dissent.
It is important to remember that although for the immunization community the vaccines are the focus, for the Court, two more general debates are a major focus in this case.
First, there is a disagreement among legal scholars, judges, and politicians on the appropriate role for administrative agencies. The debate is complex, but a very simplified version would be that there is a disagreement between those who think administrative agencies should have extensive leeway to set policy and those who think their discretion should be carefully cabined and circumscribed. In the background are disagreements about the relative roles of politicians and experts, the accountability of agencies, Congress, and courts.
The other debate in the background is on the relative role of the federal government and state. And overlying all, always in public health, are politics.
The majority’s decision focused on interpreting the Occupational Safety and Health Act, and the majority concluded that the act did not allow OSHA to regulate a general danger, a danger not specific to the workplace. Here is the core of the Court’s conclusion:
Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. …. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
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 dis- eases. 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 is making two moves here regarding the Biden administration’s vaccine mandates.
First, it is raising a doctrine called the major questions doctrine, which says, in essence, that an agency cannot use statutory powers in a new and “major” way without clear authorization from Congress. Prof. Wendy Parmet and I criticized the doctrine here as not well defined, in tension with clear Congressional delegations, and transferring powers from agencies to even less accountable courts. I think the way the doctrine was used here demonstrates some of the problems.
The Court does not even try to provide guidance on why this use of power falls under the doctrine. It just says, basically, “of course it does”, and then demands that Congress has anticipated the crisis when it gave OSHA the general power to regulate in the workplace and provided specific powers. But one reason to delegate broad power to agencies is exactly to allow them to react to situations that cannot be predicted in advance. This is even more true for emergency powers. The reason to delegate power to act in an emergency is that emergencies, by their nature, are hard to predict and hard to suggest responses to in advance.
Further, the reading of the Court is in tension with the language of the statute. I think the dissent here is right that there is nothing in the statute to require that danger be present only in the workplace, and quite a few OSHA standards are for things that can be a danger outside the workplace too (like sanitation and electricity, to name two). Further, OSHA – the agency with expertise on this – concluded that there is a high risk in the workplace, and as pointed by the dissent and by others, workers in the workplace can fairly be described as at higher risk than others. For example, Prof. Jordan Barab pointed out that “workers — almost every worker — are at higher risk of contracting COVID-19 in the workplace than the average American. And regulating workplace exposure is not the same as regulating “the hazards of daily life.”
The justices are wrong in stating that there are only two categories of people at risk: high-risk workers (for which OSHA could issue vaccine requirements) and everyone else (whose protection falls under the umbrella of “public health.) The other category is other workers — who are at much higher risk of contracting COVID-19 than the general public.”
People are in the workplace, often without an easy choice to leave, in close contact over long periods with others. That’s not equivalent to the risk while walking down the street. As to the point that OSHA has not previously issued a vaccine mandate, well, as pointed out by Prof. Barab again, in the 50 years of OSHA’s existence we have not yet faced a global pandemic that was killing over a thousand people a day in the United States for long periods, including many who caught it in the workplace. New realities do, sometimes, call for new measures.
The majority did leave open the door for OSHA to regulate categories of workers at especially high risk of contracting COVID-19 – but did not allow for broad vaccine requirements.
The majority, to stay the measure, also had to find that the balance of equities favored a stay. There, too, the decision was problematic. The majority said:
We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. … For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations.
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes.
This, too, is a problematic statement. The Court is not a passive observer here. It is deciding to overturn the judgment of an agency to whom Congress gave the power. And it is deciding to do so when the standard for a stay requires that the balance of equities support a stay. In other words, to give a stay it has to find that granting the stay will cause less harm than not granting it. It’s not giving the decision to Congress here. It’s deciding that the people that will, allegedly, be fired matter more than the lives saved. But it’s failing to do so openly.
To be clear, the majority decision is telling OSHA it cannot issue broad requirements in new situations. It is also narrowing OSHA’s power and reading it to not include regulating to protect workplaces from dangers that are not unique to the workplace. That is a substantial limit on OSHA’s power.
And still, the majority did not go as far as the concurring justices would have.
Concurrence is a decision written in agreement with the main decision in a case. Concurrences can agree with the result but take a very different approach to get there, agree with the result and the reasoning but want to add, or agree with the result and the reasoning but want to go further. This concurrence seeks to both add and go further.
The three justices concurring are justices Gorsuch, Thomas, and Alito. As a reminder, they have dissented before from pandemic cases, and I criticized them in the past for downplaying the pandemic.
They did not do so here. Their focus was on administrative power. Justice Gorsuch, who wrote the concurrence, opened it strongly:
The central question we face today is: Who decides. … The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate vaccination or regular testing of 84 million people. Or whether… that work belongs to state and local governments across the country and the people’s elected representatives in Congress.
The concurrence states that “state and local authorities possess considerable power to regulate public health.” But the federal government’s power is both limited and divided. These are certain basic tenets of our system.
But the concurrence then applies it to argue that it means that Congress had to explicitly give OSHA power to impose the vaccine mandate – and highlights that in several bills, Congress has not done so (and mentions that a majority of the Senate, acting under the Congressional review of the rulemaking act, voted against the rule).
Like the majority, the concurrence is concerned about the effect of vaccines outside the workplace and points out that OSHA is not associated with public health decisions. All of this echoes the majority – and as I said above, runs into the problem that Congress gives emergency power – or general power – exactly because it cannot anticipate every need. Justice Gorsuch does have a point about the Senate vote – on the other hand, it’s tricky to argue that Congress should have anticipated every potential step OSHA would take and gave explicit power.
Where the concurrence goes further is in two ways. First, to provide a strong rationale for the major questions doctrine – the concurrence explains that it makes sure making a broad decision “remains where Article I of the Constitution says it belongs – with the people’s elected representatives.” It would want a “clear grant of authority” to regulate “the daily lives and liberties of millions of Americans.”
Second, the concurrence connects this to the doctrine of non-delegation – a different constitutional doctrine that, essentially, says that Congress cannot delegate some powers to agencies, because the people entrusted their elected representatives to make the major policy decisions – and the elected representatives do not have a right to give that power to others.
If taken literally, the non-delegation doctrine would prevent broad delegations of power to agencies. This would make it harder for the United States to do many of the things it – like other democratic countries – do, that rely on extensive gap filling by expert agencies. The United States has never enforced the non-delegation doctrine to such an extent, and except for two cases in 1935 – on the background of the New Deal – consistently upheld broad delegations.
But there is a strand among conservative legal scholars and judges calling for tightening of the non-delegation doctrine. Drawing on that, Justice Gorsuch argues that the major questions doctrine – by requiring clear authority – prevents an agency from exploiting – his word – gaps and ambiguities to “assume responsibilities far beyond its initial assignment.”
He then adds that “if the statutory provision… really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.” That’s because he sees the nationwide mandate as very broad and as offering unlimited discretion.
What Justice Gorsuch’s opinion means is that in the concurring justices view – and on this they differ from the majority – Congress cannot give OSHA this power. This is a stronger statement, which does not yet have a majority of the Court, and which, if it became law, dramatically curtail the ability of Congress to give power to agencies.
As a reminder, at this point, Congress did give OSHA broad powers to regulate the workplace. By striking down the ETS based on a distinction (workplace or universal hazard) that’s not in the statute, the Court is not upholding Congress’ powers here; it’s taking to itself the power to ignore the plain language of a broad delegation, and the conclusion of the delegated agency that this is a workplace hazard.
For a very different view of this, see Prof. Ilya Somin’s analysis.
The dissent opens by highlighting the risks and harms of COVID-19 to people in the United States – “and particularly, to its workers.” It then describes OSHA’s action as doing “what Congress commanded it to do: It took action to address COVID-19’s continuing threat in [workplaces].” The dissent argued that the Court misapplied the standard, stopped the federal government’s ability to counter the threat of COVID-19 in the workplace, and displaced the judgment of officials.
On the OSHA Act, the dissent points out that the virus is a grave danger, meeting the standard of the ETS, and necessary. This, by the way, is where the majority could push back and stay within the law because there is a long list of precedents striking down previous ETSs. The fact that the majority did not go there – but instead read into the law a distinction between occupational hazards and general hazards that it does not have – suggests to me, at least, that the majority may think that the ETS does meet the grave danger and necessary prongs.
The dissent criticized the majority’s reading of the requirement that OSHA power be limited to risks that are specific to workplaces is not in the text of the act, and in tension with other regulations that address hazards that also exist outside the workplace. For example, OSHA has regulations for “risks of fire, faulty electrical installations, and inadequate emergency exits.”
I think the dissent has the better argument on this. The dissent also points out that the discretion to issue an emergency standard is carefully cabined with requirements that it address a grave danger and that Congress did not authorize a specific standard because it could not predict the future, but gave discretion exactly so that OSHA will have “the tools needed to confront emergency dangers … in the workplace”. The broad standard reflects the nature of this emergency.
Further, the dissent reminds us that a stay should only be issued if the balance of harms supports it. Here, the economic disruptions plaintiffs allege were addressed by OSHA, which found experience does not support largescale resignation, and that the ETS would provide some economic benefits too. And the public interest in preventing disease and death is larger than the alleged costs. Because of this balance, argues the dissent, the stay is not justified.
Finally, the dissent agrees with Justice Gorsuch that the core of the issue is who decides – but frames it differently. It suggests that the question is who decides how much protection American workers need from COVID-19? “An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” The dissent thinks the majority is taking power from an agency to whom Congress delegated the power, and giving it to unaccountable, non-expert courts.
I assess that although this was a discussion of whether to grant a temporary stay, the Supreme Court’s decision closes the issue, and the ETS is dead. In theory, OSHA could ask Congress to empower it to put in place a vaccine mandate; the majority’s opinion focused on Congress’ statute, so that’s an option. But it’s not easy to pass legislation, and I think Justice Gorsuch has a point that if the Senate majority voted against the ETS, the administrations may not have the votes. Under the majority’s decision, OSHA could also put in place an ETS to protect a narrower category of workers where the risk of COVID-19 is higher than for the general public. I don’t know if they will. I will add that given the shortage of testing, I’m not sure a vaccinate-or-test program is viable right now.
States can impose workplace vaccine requirements. So can private businesses in states that do not prohibit it – and the number of job postings including vaccine requirements have doubled recently. But I doubt the Biden administration can do much more there. It may be better off focusing on other measures, like making high-quality masks and tests available to all and maybe imposing domestic travel vaccine mandates.
Biden adminisration vaccine mandates — the CMS Standard
As a reminder, I’ve written about the decisions staying these Biden administration vaccine mandates as well. At the point this case arrived at the Supreme Court, lower courts decisions put the cases on hold in 25 states. The Supreme Court’s decision overturning the stays – the holds – was a 5:4 decision. In the majority were Chief Justice Roberts and Justices Breyer, Kagan, Kavanaugh, and Sotomayor. Two dissents were signed by four justices – Justices Alito, Barrett, Gorsuch, and Thomas. One was written by Justice Thomas and one by Justice Alito.
The main area of contention between the majority and Justice Thomas’ dissent (signed, as a reminder, by all four dissenting justices) was how to interpret the statutes granting authority to the administration. The majority interpreted the grant of power as broad, and as allowing CMS – through the Secretary of Health and Human Services – to regulate for health and safety of people in the facilities. This was based in part on, well, the clear language of the statutes addressing the different facilities, and the history of CMS of imposing extensive requirements on facilities taking their money – including regulation related to infectious disease. A core paragraph is:
Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).* COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Hu- man Services determined that a COVID–19 vaccine man- date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients. 86 Fed. Reg. 61557–61558. He accord- ingly concluded that a vaccine mandate is “necessary to pro- mote and protect patient health and safety” in the face of the ongoing pandemic.
The rule thus fits neatly within the language of the stat- ute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con- sistent with the fundamental principle of the medical pro- fession: 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 dissent emphasized the fact that the language of the provision empowering the Secretary to regulate is very general, and that the health and safety provision vary. But the majority – rightly, I think – rejected it due to the “longstanding practice” of CMS and the history of extensive conditions participating facilities had to meet in the past. It also cited the support of healthcare workers organizations and public health organizations in support.
The second disagreement between the majority and the dissent was about the procedure. Justice Alito criticized the CMS’ choice to skip notice and comment. As I said in my previous post, there is something to this argument, in the sense that courts only “narrowly” allow exceptions from notice and comment requirements.
But it’s not without counters. The majority concluded that “…the Secretary’s finding that accelerated promulgation of the rule in advance of the winter flu season would significantly reduce COVID-19 infections, hospitalizations, and deaths,” was a good reason for the delay, and two months to prepare the 73-page rule was not a delay that negates the need.
So the CMS requirement that healthcare facilities mandate the vaccines – with relevant religious and medical exemption – is now operational in all states. I think this, too, ends the cases, even though, again, this is just a decision on an interim procedure – but the Supreme Court reasoning likely means any further decisions in lower courts that go against the mandate will be overturned.