Exclusive–Kobach: Supreme Court Justices Offer Clues About the Fate of the OSHA Vaccine Mandate

On Friday morning, the Supreme Court heard arguments concerning the legality of President Biden’s use of an OSHA “emergency temporary standard” to force vaccinations (or weekly testing and constant mask wearing) on people working at companies with 100 or more employees.  

More than two dozen suits were filed in the case, which was subsequently consolidated into a single, mammoth lawsuit in the Sixth Circuit of the U.S. Court of Appeals.  However, as soon as the Sixth Circuit lifted a stay on the OSHA standard that had been put in place by the Fifth Circuit, the groups challenging the OSHA standard sought an emergency stay in the Supreme Court.  The emergency stay would only be in place until the case was fully reviewed by the courts and a final decision was issued.  I am the lead attorney representing one group of those challengers—North Dakota companies and employees.

Although it is difficult to draw firm conclusions from the questions and statements made by the Justices during oral argument, several of the Justices revealed their thinking on the matter.

The three progressive Justices showed their hands clearly:  all three are leaning strongly in OSHA’s favor.  Justice Kagan seemed willing to let the OSHA mandate go into effect because of the danger presented by COVID.  Justice Sotomayor, too, suggested that “deaths at an unprecedented amount” justified the OSHA rule.  She also suggested that a “national rule” was needed to overrule the states that had banned vaccine requirements in the workplace.  Justice Breyer was even stronger in his expression of support for OSHA, focusing on the large number of new COVID cases emerging daily and calling it “unbelievable” to say that the OSHA vaccine mandate is not in the public interest.  

The progressive Justices also argued that the sickness and death that the absence of a vaccine mandate might cause outweighed the possibility that 1-3 percent of employees might quit rather take the vaccine.  But the 1-3 percent estimate is OSHA’s, and it is not remotely realistic.  One of the parties that I represent in this litigation, DTN Staffing—a company that provides nurses to medical facilities in the northern Midwest—estimates that 40-50 percent of its nurses will quit if they are forced to get the vaccine or test weekly.

On the other side, the two most conservative Justices were clearly skeptical regarding the OSHA standard’s legality.  Justice Thomas pointed to the fact that states and local government entities have the authority to enact COVID rules, so the absence of such authority in OSHA does not mean other government entities cannot act.  Justice Alito said that by using an OSHA standard, the Biden Administration was “trying to squeeze an elephant into a mousehole.”  He also pointed out that “protecting the vaccinated was not the basis for this rule;” instead OSHA justified it as a means of protecting the unvaccinated.  If that is the case, then the OSHA rule becomes hard to justify, when those workers have assessed those risks and are willing to bear them.  He emphasized that the OSHA regulation itself “imposes a risk” because of the potential adverse health consequences that many people suffer after receiving a COVID vaccination.

Two of the Trump appointees seemed to be leaning against the rule.  Justice Gorsuch asked Biden’s Solicitor General, “Why isn’t this a major question that belongs in the states and in the halls of Congress?”  He also pointed out that “traditionally OSHA has not regulated in this area,” and that if OSHA could use emergency regulations to deal with COVID, then it could also use emergency regulations to address the flu.  And Justice Kavanaugh noted that Congress has passed laws addressing vaccines before, but not in this context, suggesting therefore that Congress did not intend for OSHA to have such authority.

Justice Barrett was harder to read. She asked questions about the standard of review that the Court should be using and where to draw the line between OSHA normal standards, which are subject to public notice and comment, and emergency regulations like this one.  But she did not reveal her own thinking on the subject.

Importantly, Chief Justice Roberts, often considered a swing vote on the Court, voiced significant skepticism about the rule.  He pressed Biden’s Solicitor General, saying, “I don’t think you can say that [the OSHA statute] was specifically addressed to the problem.”  He noted, “That was fifty years ago when Congress acted.  I don’t think it had COVID in mind.” He also stated that the matter was more appropriately left to Congress and the states to address, rather than “agency by agency” within the federal bureaucracy.

Roberts’s statements are an important clue about where the Court may go.  If he votes with the conservative Justices against the OSHA vaccine mandate, then it is more likely that Justices Gorsuch, Kavanaugh, and Barrett will follow.

Hopefully that is what will happen.  If not, millions of Americans will be compelled to leave their jobs; and millions of others will succumb to government coercion and take a vaccine that they do not wish to take.  Our Constitution and federal statutes do not allow OSHA to put 84 million American workers into such a position.

Kris W. Kobach served as the Secretary of State of Kansas during 2011-2019.  Prior to that, he was a law professor at the University of Missouri—Kansas City School of Law.  An expert in immigration law and policy, he was an informal adviser to President Trump.  He is currently General Counsel of the Alliance for Free Citizens and lead counsel representing the North Dakota businesses and employees in the case before the Supreme Court.  His website is www.kriskobach.com. 

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