Supreme Court Tanks Biden’s Big Business Vaccine Mandate

Justices preserve vaccine requirement for health care workers

Kevin Daley • January 13, 2022 3:30 pm

The Supreme Court blocked the Biden administration’s vaccine mandate for big businesses on Thursday, but preserved a narrower vaccine requirement for federally-funded health care workers.

Both decisions were unsigned and featured different coalitions. The Court blocked the big business mandate over the dissent of the liberal trio, while Chief Justice John Roberts and Justice Brett Kavanaugh joined with the liberals to preserve the health care worker mandate.

The big business rule would have forced more than 80 million workers to require vaccinations or test unvaccinated employees. It was issued by the Occupational Safety and Health Administration. The health care worker mandate applies to all medical facilities that take Medicare or Medicaid dollars, and similarly requires all workers to get inoculated against COVID.

Thursday’s decision is a setback for President Biden, who is struggling to make progress against the pandemic. COVID tests remain sparse in many parts of the country, and the administration did not craft a plan to improve access until late December, well into the surge of Omicron variant infections. The president’s pick to lead the Centers for Disease Control, Dr. Rochelle Walensky, has been criticized for bungling booster shot guidance and succumbing to outside pressure when revising recommended quarantine protocols.

The administration’s most aggressive COVID policies have repeatedly run into trouble before the High Court. The justices blocked the CDC’s eviction moratorium in August, when it also telegraphed that a nationwide vaccine mandate would not survive a challenge.

“We expect Congress to speak clearly when authorizing an agency to exert powers of vast economic and political significance,” that decision read, anticipating the arguments in Thursday’s case.

The High Court cited that very passage in Thursday’s decision, saying there is “little doubt that OSHA’s mandate qualifies as an exercise of such authority.” The majority went on to say that OSHA’s chartering statute empowers it to regulate dangers arising in the workplace specifically. COVID, on the other hand, is a threat always and everywhere.

“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 decision reads.

A lower court opinion from Chief Judge Jeffrey Sutton of the Sixth U.S. Circuit Court of Appeals proved important to the dispute. Thursday’s nine-page decision cited Sutton’s opinion four times. The Washington Free Beacon reported in December that Sutton’s opinion would be influential at the Court.

OSHA promulgated the employer rule in November. It directed all companies with more than 100 workers to require vaccines for in-person work, or test the unvaccinated and ensure they wear masks. Red states and business groups who challenged the rule, taking cues from the moratorium case, said Congress never clearly empowered OSHA to take such a step.

Hiring has fallen short of expectations on four of the last five monthly jobs reports from the U.S. Bureau of Labor Statistics. The latest report showed the economy added 199,000 new jobs in December 2021, far short of the 422,000 economists projected. OSHA expects that tens of thousands of workers will quit their jobs rather than comply with the rule. Lawyers representing business groups said that’s a reason for the Court to move quickly in Thursday’s dispute.

“Just three days ago, the U.S. Postal Service told OSHA that this [rule’s] requirements are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service,” said Scott Keller, one of the lawyers who challenged the vaccine mandate in the Supreme Court.

A five-justice majority separately upheld the health care worker mandate, saying the Department of Health and Human Services can place reasonable conditions on the receipt of federal funds, especially those that promote patient safety.

“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,” the decision reads.

The cases are No. 21A244 NFIB v. OSHA and No. 21A240 Missouri v. Biden.