News Analysis & Commentary
It looks like the Supreme Court will determine the future survival of the Biden administration’s flurry of executive orders and agency actions requiring employers to force their workers to get the COVID-19 vaccine.
Just before Christmas, Chief Justice John Roberts announced that the court would hold a hearing on Jan. 7 to review elements of numerous legal challenges that have been brought against two of the Biden vaccine mandates.
Earlier this year the President ordered the Occupational Safety and Health Administration (OSHA) to impose an emergency temporary standard (ETS) that commands employers with 100 or more employees to ensure all their workers are vaccinated against COVID-19 or mask in the workplace and are tested regularly. The standard is estimated to cover 80 million workers.
Also under review will be a similar mandate issued by the federal Centers for Medicare and Medicaid Services (CMS) requiring 76,000 healthcare facilities that employ more than 10.3 million workers who are paid through the Medicare and Medicaid programs.
A separate mandate requiring that federal contractors and subcontractors make sure their workers are vaccinated is not included on the agenda of the Supreme Court hearing, but enforcement of that order remains blocked by a preliminary injunction imposed by a lower court while its legality is challenged.
Roberts’ announcement of the Jan. 7 hearing rendered moot a Dec. 30 hearing that Justice Brett Kavanaugh scheduled just days earlier. If that hearing had taken place, he sought to hear arguments from the Biden Administration about why it believed the court should not hold a hearing to review the mandates’ constitutionality.
Among those who are opposing the standard in court are 27 state attorneys general and governors, business and religious coalitions, and national industry associations such as the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business, who have been pursuing lawsuits through the federal district court and several appeals courts.
The mandate opponents petitioned the Supreme Court to take up the case after two members of a three-judge panel of the Sixth Circuit Court of Appeals chose to lift a federal district court injunction that earlier had blocked implementation of OSHA’s ETS. Although the agency said it would hold off enforcement for a month, the ETS called on employers to have vaccination procedures in place by Jan. 4.
A different appeals court partially lifted stays imposed on the CMS mandate by federal district courts, which ended up with the surviving injunction being limited to the 24 states where lawsuits actually had been filed and lifted it in states where there were no suits. This created an instant compliance nightmare for multistate CMS employers.
What Will the High Court Do?
What the Supreme Court will do following the Jan. 7 hearing is anyone’s guess. The court could choose to quickly render judgment or instead press ahead with a full briefing and oral argument concerning the legality of the mandates. Whatever the court decides to do, history tells us that it might be something no one expects.
A main legal argument against the Biden mandates is that their issuance exceeded the Administration’s legal authority under the separation of powers doctrine established by the Constitution. This view holds that it was left up to the Congress to make such sweeping changes to federal agency responsibilities through legislation. In the case of OSHA, that means the agency overstepped its bounds by moving beyond the responsibility assigned to it by Congress for the enforcement of safety standards and prevention of work-related injuries and illnesses that arise in the course of performing work, like silicosis and Black Lung.
According to this argument, Congress never intended for OSHA to create and enforce standards regarding events outside of the workplace, like measles outbreaks and private automobile accidents. It’s a position that gained support a few weeks ago when the U.S. Senate voted 52-48 to remove the mandate.
Although the Democrat-controlled House of Representatives would never approve the measure, its passage by the Senate also shows that a legislative OSHA vaccine mandate like the President’s would not make it through Congress.
Also undermining the Administration’s defense is the fact that high White House officials admitted they had used OSHA’s jurisdiction (and by implication other federal work requirements applying to federal contractors and CMS employers) as a pretext for imposing a sweeping nationwide vaccination program onto the population that the government otherwise could not legally support.
When it comes to the ETS issued by OSHA, matters get even stickier for the Administration. On his second day in office, Biden signed an Executive Order requiring OSHA to create a general COVID emergency standard to regulate employer practices. When the agency did so, that ETS did not contain any requirement for vaccinations.
If it wasn’t necessary then, why was it needed several months later after tens of millions of Americans had submitted to the jab and many individual employers on their own had imposed such a requirement on their workers? Another problem identified by some lower court judges was OSHA’s rush to announce an emergency standard instead of engaging in the normal rulemaking process required by federal regulatory law, including formal notice and comments provisions.
This is no picayune technicality as far as the federal courts are concerned. Throughout its 50-year history, OSHA has issued only 10 such ETS rules. Six of them were challenged in court and only one of those survived judicial scrutiny.
Did Biden Overstep His Bounds?
The Supreme Court also may take a jaundiced view of Biden’s casual resort to presidential Executive Orders. In this he has followed the example of President Obama, who after Republicans took control of the Senate stated that, rather than compromise to get things done, he would use “his pen and phone” to bypass the legislative branch.
That didn’t work out well for him. The Supreme Court struck down no fewer than 13 of his subsequent orders. And, even more damning, in each and every case the court chose to do so unanimously—at a time when the court membership was more liberal than it is today.
The current Administration’s position is that the Coronavirus is such a massive threat that extraordinary government measures are called for. The federal government and state and many local governments have not been shy about fueling public hysteria over the new Omicron variant, leading to suspicions the fearmongering is designed to justify new and continued public restrictions.
White House spokesperson Jen Psaki appeared to give the game away when she summarized the Administration would defend the vaccination mandates: “Especially as the U.S. faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed. At a critical moment for the nation’s health, the OSHA vaccination or testing rule ensures that employers are protecting their employees and the CMS healthcare vaccination requirement ensures that providers are protecting their patients.”
Unfortunately, it seems Omicron is not cooperating with the program. As time goes by it appears to have undermined the highly divisive argument deployed by Biden and others, who angrily condemn those who don’t want to get the shot that this is “a pandemic of the unvaccinated.” With the advent of this new variant, that is simply no longer the case, with many of its victims having had all their shots and boosters—including sailors on a Navy ship at sea where the entire crew had been vaccinated.
Government officials have contended that the shots lessen the severity of the disease’s symptoms, and that very well may be the case. However, outbreaks elsewhere in the world where far fewer people have been vaccinated than in the U.S. also have been characterized by mild symptoms and few if any deaths.
The public is beginning to rebel and some politicians are sensing that. The governor of Maryland ordered a country school district to reopen schools it had just closed. A county leader in New York State announced he would not enforce a new mask mandate ordered by the governor. More people are raising questions about the role played by natural immunity as well, and why the mandates fail to recognize it as a viable alternative to vaccines.
When it comes to the Supreme Court possibly striking down the Biden mandates, it is likely that those who loftily maintain vaccination orders are a violation of their God-given rights to freedom and personal liberty are bound to be disappointed when they discover the mandates failed because the Administration didn’t perform environmental and small business impact studies required by the Administrative Procedures Act.
“Text without context is pretext” declared the Rev. Jesse Jackson many years ago when emotions were running high over something he said. The Supreme Court might very well agree this time around as well.