The OSHA COVID-19 Mandate has been defeated.

And – Justices Roberts and Kavanaugh help uphold the CMS Mandate.

Techno FogJan 13

Today, the Supreme Court stayed the implementation of the Occupational Health and Safety Administration’s (OSHA) COVID-19 vaccine mandate, stating:

Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.

You can read the full opinion here. Justices Breyer, Sotomayor, and Kagan dissented – meaning that Justices Roberts, Thomas, Kavanaugh, Barrett, Alito, and Gorsuch voted in favor of staying the OSHA Mandate.

The effect of the stay is that the OSHA Mandate is essentially struck. It’s over. It won’t be implemented. In reaching this decision, the Court relied on the major questions doctrine (aka major rules doctrine), which we discussed herein arguing why the OSHA Mandate was unlawful. For those of you keeping score, we made this argument despite Twitter’s assurances that the OSHA Mandate was lawful. 

As to the Court’s reasoning, here are some highlights:

• The Secretary of Labor likely “lacked authority to impose the mandate.” In making this finding, the Court noted that the OSHA Mandate affects millions of Americans – and that the Court expects “Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” The Court reasoned that the OSHA Act “does not” plainly authorize the mandate. (The major questions doctrine.)
• COVID-19 “is not an occupational hazard.” Allowing the OSHA Mandate “would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Justice Gorsuch – with whom Justices Thomas and Alito joined – added some important points in his concurring opinion:

• The OSHA Mandate fails the major question doctrine, as “Congress has nowhere clearly assigned so much power to OSHA.” In fact, “a majority of the Senate even voted to disapprove OSHA’s regulation.”
• “The Court rightly applies the major questions doctrine and concludes that this lone statutory subsection does not clearly authorize OSHA’s mandate.”
• “Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers. Meanwhile, at the federal level, OSHA arguably is not even the agency most associated with public health regulation. And in the rare instances when Congress has sought to mandate vaccinations, it has done so expressly. We have nothing like that here.”

The CMS Mandate

Unfortunately for healthcare workers, the Supreme Court – in a 5-4 decision – allowed the CMS COVID-19 vaccine mandate to continue. Those voting in favor: Justices Roberts, Kavanaugh, Breyer, Kagan, and Sotomayor. Those opposed: Justices Thomas, Alito, Gorsuch, Barrett.

The majority concluded that Secretary Becerra “did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.”

While the CMS ruling is flawed, and while Roberts and Kavanaugh continue to be disappointments to the rule of law, there is a silver lining. The Court’s rejection of the OSHA Mandate is a clear win for those who seek to constrain a federal government that seizes power at every opportunity. It’s a bad day for President Biden.