Supreme Court blocks Biden's vaccine-or-test mandate for large private companies

Updated: 3:42 p.m., Thursday, Jan. 13, 2022

The U.S. Supreme Court struck down the Biden administration's vaccine-or-test rule Thursday, declaring that the Occupational Safety and Health Administration had exceeded its authority. But at the same time, the court upheld a regulation issued by the Centers for Medicare and Medicaid Services that mandates vaccines for almost all employees at hospitals, nursing homes, and other healthcare providers that receive federal funds.

The vote to invalidate the vaccine-or-test regulation was 6 to 3, along ideological lines.

"Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly," the majority said in an unsigned opinion. "Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category."

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, the court's three liberals, dissented.

"In our view, the Court's order seriously misapplies the applicable legal standards. And in so doing, it stymies the Federal Government's ability to counter the unparalleled threat that COVID–19 poses to our Nation's workers," they wrote in their dissent. "Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies."

The regulation struck down by the court would have applied to more than 80 million private sector employees and would have required all businesses with 100 or more workers to either be vaccinated, with the federal government footing the bill, or be tested weekly.

Ohio was the leader of the 27 Republican-run states that opposed the mandate and brought it to the high court.

Ohio Attorney General Dave Yost said the ruling protects individual rights and freedom.

After the arguments last week Yost said it wasn’t about whether vaccines work or if a mandate is a good idea, but that a mandate must be enacted by Congress, not an agency or the Biden administration.

“Once you give a bureaucrat the vast power to implement these kinds of mandates through the OSHA law, you'll never close that door. And that, my friends, is what this case is actually all about," Yost said.

Ohio Solicitor General Ben Flowers argued the case. He did so remotely, since he had tested positive for COVID-19.

The decision to invalidate the regulation comes as COVID-19 cases reached a new high of 1.4 million early this week. That has swamped hospitals across the country, flooding them with mainly with unvaccinated patients; the situation has been serious enough to prompt some governors to call out the National Guard to help, even as governors in some other, Republican-dominated states have made vaccine mandates illegal.

In stark contrast to the decision in the OSHA case, the court voted 5 to 4 in the CMS case uphold mandatory vaccinations for Medicare and Medicaid providers. The court's three liberals were joined by Chief Justice John Roberts and Justice Brett Kavanaugh.

The court said that the vaccine mandate for health care workers was, unlike the OSHA regulation, justified by the spending clause of the Constitution which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare. In addition, the court said, the regulation served to protect patients from being exposed to greater risks when they are in a hospital, nursing home, or being cared for by other health entities.

"The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm," they wrote in the unsigned opinion. "It would be the 'very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.'"

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Amy Coney Barrett dissented.

"These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo," Justice Thomas wrote in his dissent. "Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal."

Additional reporting by Ohio Statehouse News Bureau Chief Karen Kasler

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