Two Supreme Court Vaccine Decisions Tell the Tale of Two Americas

On January 13, 2022, the Supreme Court handed down decisions in two cases involving the federal government’s attempt to require vaccines for employees working in large employment settings and health care facilities, projecting the direction of future COVID-19 vaccine laws.

In the “large employer” case, titled Nat’l Fed. Independent Bus. V. Dept. of Labor, the conservative majority held that the Occupational Safety and Health Administration (OSHA) exceeded its statutory authority to impose a vaccine or test rule, dissolving this rule requirement on large employers.

On the same day, the liberal majority in the “healthcare facilities” case, titled Biden v. Missouri, held that the Department of Health and Human Services (“DHHS”) was within its authority to impose a vaccine mandate on healthcare workers in facilities receiving federal funds. This ruling allows the vaccine mandate to stay in effect for most healthcare facilities.

There are several takeaways to consider from these rulings. Unfortunately, most of them revolve around the fractured nature of the court’s functioning, which is disturbingly beginning to parallel a polarized and contentious America.

Large Employer COVID-19 Vaccine or Test Rule  

In response to an overwhelming number of Americans contracting and dying from COVID-19, President Biden announced in September an ambitious plan to make sure that more Americans became vaccinated against the disease. In November 2021, OSHA issued an emergency rule requiring all employers with at least 100 employees to direct their employees to show proof of vaccination or be subjected to weekly testing and mask-wearing. The rule carved out exceptions for employees who worked remotely or exclusively outdoors.  Unvaccinated employees who did not follow the OSHA rule would be removed from the workplace, and employers who committed violations would face fines.

States, businesses, trade groups, and nonprofits almost immediately filed lawsuits that reached every regional federal Court of Appeals. At the Supreme Court, the government’s burden was to convince the court that, given the extraordinarily destructive nature of the novel virus on American workers, OSHA had the constitutional and statutory authority to enforce a vaccine mandate at work.  

The government failed. In the “per curium” decision – meaning a decision not attributable to any justice – the court held that states and businesses would likely prevail on their arguments that the rule is invalid. The court laid out three general reasons for negating the rule: 1) the vaccine or test mandate exceeded OSHA’s statutory authority, 2) the rule violated the constitutional separation of powers considerations, and 3) the rule was not adequately tailored to the risks facing distinct types of workers and workplaces. Let’s delve into each of these pieces of reasoning…

OSHA Exceeded its Workplace Safety Authority

OSHA is the federal agency formed by the Occupational Safety and Health Act. As a federal agency, its powers are solely derived from the statute that created it. Under the OSHA Act, the agency is tasked with ensuring occupational safety – that is, “safe and healthful working conditions.”

Per this responsibility, OSHA has the authority to set out enforceable rules about workplace safety; however, it must allow for public comment and hearings before a rule goes into effect. There is an exception to the lengthy notice and comment requirement, which would allow OSHA to issue the rule effective almost immediately. OSHA argued that because COVID-19 created an emergency condition that caused employees to be susceptible to “grave danger” from exposure to a “toxic or physically harmful” substance, it could issue the rule expeditiously.

The majority of the Supreme Court rejected the argument that COVID-19 meets that definition. Instead, the majority emphasized that the rule would affect up to 80 million Americans in a way that was a “significant encroachment into the lives – and health – or a vast number of employees.” Interestingly, the court seemed moved by the business groups’ arguments that a vaccine or test rule would significantly encroach upon their profitability.

Next, and even more surprisingly, the court asserts that the risk of contracting COVID-19 in the workplace is not an occupational hazard. The court concluded that because COVID-19 spreads at every location that people gather, it is a universal and daily public health risk rather than an occupational one. OSHA does not have the authority to regulate public health safety, only occupational safety.

Put another way, the court concludes that unless a risk is unique – and perhaps exclusively – in the workplace, OSHA does not have the authority to enforce rules designed to minimize such a risk.

OSHA Does Not Have the Power to Regulate Workplace Vaccines

The court emphasized that never in OSHA’s history had it adopted a broad public health regulation that was “untethered” from the workplace. The majority viewed the OSHA rule as an expansive and unprecedented assertion of administrative power that demanded clear legislative support to be legitimate.

Here, the court notes, nothing in the American Rescue Plan Act of 2021 referenced vaccine mandates. Further, the Court reports that in December 2021, most U.S. Senators voted to disapprove of the OSHA vaccine regulation. The Court concludes that OSHA has no legitimate basis for exercising far-reaching powers without Congressional support to grant it such powers.

The Rule is Not Narrowly Targeted to Certain Industries or Workers

The court found that OSHA’s attempt to regulate the “hazards of daily life” such as crime, air pollution, and now, apparently, COVID-19 was an impermissible expansion of its regulatory authority. Further, the court believes that a standard vaccine mandate applied to workplaces that do not have a high risk for COVID-19 is overly broad. However, the court left open the possibility that a narrowly tailored rule, for example, one regulating researchers who work directly with the COVID-19 virus, might pass judicial scrutiny.

Dissent Aghast that COVID-19 Not Considered A Grave Workplace Danger

The dissenting opinion, authored by Justices Breyer, Sotomayor, and Kagan, begins by admonishing the majority about the dangers to Americans from unchecked COVID-19 workplace transmissions – a threat that the majority seemed to downplay.

The dissenters note, for example, that most work environments involve person-to-person contact in confined indoor spaces where most employees have little control or capacity to mitigate exposure risk. Given that, the justices conclude that the vaccine or test rule issued as an emergency temporary standard falls within OSHA’s core mission to “protect” employees from “grave danger” that comes from “new hazards.”

The dissent broadly takes issue with the majority’s framing of the rule as an unprecedented executive branch power grab. Instead, they argue that the six-month rule had sufficient guardrails to limit the extent of the administrative agency’s directive. For example, the rule exempts remote, solo, and outdoor workers, allows employers to consider religious and medical objections, and offers a testing/masking alternative to the vaccination. More importantly, the dissenting justices see no statutory basis for limiting OSHA’s powers to risks that exist exclusively in the workplace. They argue that OSHA has long regulated risks that arise within and outside the workplace, such as fire, faulty electrical installations, inadequate emergency exits, excessive noise, and unsafe drinking water. These hazards also exist in stadiums, schools, hotels, and homes, yet OSHA’s authority to regulate these risks stands mostly uncontested. While the majority bristles at a regulation that could affect up to 80 million workers, the dissent points out that OSHA has often issued broad workplace rules that have applied to millions of workers without prompting a judicial review.  

In a scathing conclusion, the liberal justices contend that OSHA’s workplace rule was informed by fifty years of expertise in workplace safety while the majority unwisely relied on its own scant knowledge of employee safety to reach its opinion. In a not-so-veiled nod to the political undercurrents of the issue, the justices remind the majority that the public will judge the actions of an executive administration at election time. Unlike the actions of the Supreme Court as “its’ members are elected by, and accountable to no one.”

Healthcare Workers COVID-19 Vaccine Rule

The Department of Health and Human Services (DDHS) administers the federal Medicare and Medicaid programs and has general authority to regulate healthcare facilities that receive Medicare/Medicaid funding. As part of its mission is to protect patients’ health and safety, so DHHS may legitimately impose certain conditions upon facilities to receive federal funding. For example, DHHS may require that certain providers develop programs to prevent the transmission of infectious diseases.

On November 5, 2021, DHHS added a new requirement for receiving funding: those facilities had to ensure that their covered staff was vaccinated against COVID–19. A facility’s failure to comply may lead to monetary penalties and ultimately termination of participation in the programs.

Shortly after the agency’s rule was announced, two groups of states – one led by Missouri, and one led by Louisiana – filed separate actions challenging the rule. The federal government then asked the Supreme Court to stay both injunctions. On this argument, the government won.

Majority Upholds the Vaccine Rule for Healthcare Workers

For this question, the liberal justices persuaded two members of the conservative wing to join them for the court’s second “per curium”decision. The majority pointed out in its ruling that “vaccination requirements are a common feature of the provision of healthcare in America,” and said, “Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella.”

The court further held that “ensuring 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.” What seemed to be the most pertinent point for the court was that the DHHS has had a longstanding practice of regulating and implementing infection controls.

The majority opinion here acknowledged the conservative justices’ concerns about executive powers by noting that “the challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. However, the majority went on to distinguish this situation by concluding, “At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

Dissent Blasts a Rule Requiring Workers to Undergo an Unwanted Medical Procedure

In two separate dissenting opinions, the minority opposes the idea that the federal government has the authority to compel health care workers to be vaccinated against the virus. These justices contend that the governing statutes do not explicitly grant the government that authority.

Further, the minority takes issue with the emergency nature of the rule, given that it did not go through the regular public notice and comment period. The minority was not moved by the government’s argument that the data showing the vital importance of the vaccine meant that haste was imperative to public health. Finally, the minority expresses the view that the majority’s decision to uphold the agency’s rule further expands the role and power of the executive branch in an unfair and dangerous way.

Broader Implications for the Court, the Cultural Divide, and the Role of Politics in the Law

How is America supposed to understand and reconcile these two cases that seemingly stand on entirely different legal theories and facts?

The intense disagreement between the liberals and the conservatives on the role and powers of the federal government vs. the dangers of the pandemic is on full display here. And sadly, it seems to mirror the heated and intense debate happening on this issue between Americans.

The theoretical underpinnings of the conservatives are well-illustrated in Justices Gorsuch, Thomas, and Alito’s concurring opinion in the large employer case. Here, the most conservative justices do not feel constrained to create consensus with their less conservative peers. Instead, the justices gleefully champion their bedrock belief in a limited federal government. The conservative justices believe that the “general power” of governing public health issues rests squarely with state and local authorities and not the federal government.

Notwithstanding a virus that knows no state or local boundaries, they believe that the executive branch does not have the general power to govern public health issues even when state governments fail to do so. Only an express act of Congress will suffice to grant such authority according to the conservative justices who seem to downplay COVID’s threat to public safety.

By contrast, the liberal justices take great pains to highlight government’s data showing the likely harms of an uncontained virus. The liberal justices are metaphorically face-palming the majority’s assertion notion that COVID-19 is not a grave danger in the workplace because it also exists outside of the workplace. The minority sees no overreach of executive powers by allowing an administrative agency tasked with protecting workplace safety from issuing rules designed to protect workers. Based on this principle, the liberal justices upheld the healthcare facilities’ vaccine requirement.

Unfortunately, this leaves the public with uncertainty about the actual law of the land. Cases were supposed to go to the Supreme Court for a final, undisputable ruling.  Here, it remains to be seen what the actual rulings mean. Which theory will prevail in the next round of cases that contemplate the dangers of the pandemic vs. the power of the federal government? How will state OSHA agencies handle worker complaints of unsafe workplaces because of unvaccinated workers when the Supreme Court declared it not a “grave danger”? How does the minorities’ staunch opposition to a federal government’s lack of authority to weigh in on medical procedures affect abortion cases?  These cases leave us with more uncertainty at a time the public is craving some finality about these issues.

Both decisions were issued “per curium,” which means that the justice who wrote the opinion is not identified. This used to be a relatively rare occurrence at the Supreme Court but has become disappointingly commonplace. Many Supreme Court scholars are discouraged by this practice as it certainly does not help improve public confidence that the courts are politically neutral and accountable for their decisions. That Supreme Court justices are acutely aware of how simply identifying authorship could lead to hateful blowback is yet another sign that we as are in a time of immense distrust and disharmony.

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