ROCKINGHAM — A federal government mandate requiring large private-sector employers to have their workers get vaccinated or submit to weekly testing was sidelined by the Supreme Court on Thursday.
In a split decision, the majority disagreed with the Sixth Circuit Court of Appeals, arguing that the Occupational Health and Safety Administration was overstepping its authority and trying to exercise a power not given to it by Congress.
The mandate, which was slated to go into effect Jan. 4, orders companies with 100 or more employees to require employees to get the vaccine or be tested weekly. Companies refusing to comply could face up to a $14,000 fine per violation.
“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense,” wrote Justice Brett Cavanaugh. “This is no ‘everyday exercise of federal power.’ It is instead a significant encroachment into the lives — and health — of a vast number of employees. There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.
“The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”
In his concurring opinion, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said the court is “not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.”
Gorsuch went on to say that the federal government’s powers are divided and limited.
“Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other,” Gorsuch continued. “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.’”
Like Cavanaugh, Gorsuch said OSHA is not authorized to make such a mandate.
“In saying this much, we do not impugn the intentions behind the agency’s mandate,” Gorsuch concluded. “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.”
In their dissent, Justices Sonia Sotomayor, Elena Kagan and Stephen Bryer argued that OSHA “did what Congress commanded it to: It took action to address COVID–19’s continuing threat in those (workplace) spaces.”
They wrote that Congress’ appropriation of $100 million “to carry out COVID–19 related worker protection activities” refutes the majority’s view “that workplace exposure to COVID–19 is somehow not a workplace hazard.”
“Congress knew — and Congress said — that OSHA’s responsibility to mitigate the harms of COVID–19 in the typical workplace do not diminish just because the disease also endangers people in other settings,” the trio said.
The Democratic appointees concluded, taking a swipe at the conservative majority:
“When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”
According to SCOTUS Blog, the mandate “will remain on hold while the challenges to its legality continue in the U.S. Court of Appeals for the 6th Circuit.”
In a 5-4 decision, the court also granted a request from the Biden Administration to enforce a mandate for health care workers at facilities that receive federal funding.
Thomas — in a dissenting opinion joined by Justices Amy Coney Barrett, Gorsuch and Alito — argued that: “If Congress had wanted to grant (the Centers for Medicare and Medicaid Services) authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”
“These cases are not about the efficacy or importance of COVID–19 vaccines,” Thomas wrote. 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. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.”