Joe Ravi via Wikimedia Commons
Just three days after the OSHA’s emergency mandate took effect, the Supreme Court halted it in its tracks. The mandate required that workers at businesses with 100 or more employees must get vaccinated or submit a negative COVID test weekly to enter the workplace. It also required unvaccinated workers to wear masks indoors at work.
Justice Gorsuch authored the concurring opinion focusing primarily on the major questions doctrine, stating:
Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: “We expect Congress to speak clearly” if it wishes to assign to an executive agency decisions “of vast economic and political significance.”
OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA. Approximately two years have passed since this pandemic began; vaccines have been available for more than a year. Over that span, Congress has adopted several major pieces of legislation aimed at combating COVID–19. E.g., American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate.
He concludes that the matter is ultimately an issue of the legislature:
The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little.
The Court did, however, allow a more limited mandate to go into effect. Healthcare workers in facilities that accept Medicare and Medicaid payments will be required to abide by the US Department of Health and Human Services’ vaccine mandate. While it does allow for medical and religious exemptions, the rule does not appear to allow weekly tests as an alternative to the vaccine.
UPDATE: President Joe Biden released a statement in response to the ruling urging business owners to implement their own vaccine mandates.
As a result of the Court’s decision, it is now up to States and individual employers to determine whether to make their workplaces as safe as possible for employees, and whether their businesses will be safe for consumers during this pandemic by requiring employees to take the simple and effective step of getting vaccinated. The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy. I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities.
Press Secretary Jen Psaki indicated the White House will not immediately attempt to issue a more targeted vaccine mandate.