A Split Supreme Court Decision on Vaccine Mandates


The U.S. Supreme Court in Washington, D.C.


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The Supreme Court rebuked the Biden Administration’s vaccine mandates with one hand on Thursday but gave it a pass on the other. The split decision counts as a welcome setback for an overreaching administrative state, but not as welcome as it might have been.

In the more important decision, a 6-3 majority blocked the Occupational Health and Safety Administration’s sweeping mandate covering some 84 million employees of large employers. In an unsigned opinion, the Court said OSHA exceeded its statutory authority. And it has never adopted a “broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”

The mandate is no “‘everyday exercise of federal power,’” it adds, citing Sixth Circuit Chief Judge

Jeffrey Sutton.

“It is instead a significant encroachment into the lives—and health—of a vast number of employees.”

The Court’s major questions doctrine requires Congress to give clear statutory direction for economically and politically significant actions. Congress never passed a law authorizing the mandate, though in their dissent the three liberal Justices purported to find one in the emanations and penumbras of the OSHA law. A Senate majority voted last month to disapprove it.

OSHA also violated administrative law by not tailoring the mandate to workplace risk. While OSHA provided narrow exemptions for employees who work remotely or outdoors 100% of the time, the Court notes these “exemptions are largely illusory.” Only 9% of landscapers qualify as working exclusively outside. The rule “otherwise operates as a blunt instrument,” the Court writes.

The liberals chided their colleagues for overruling regulators’ supposedly expert judgment, and they try to hoist Chief Justice

John Roberts

on his own words. Judges “‘lack[] the background, competence, and expertise to assess’ workplace health and safety issues,” they write, citing the Chief’s opinion in a religious liberty case early in the pandemic.

This bow to judicial modesty is out of character for the liberals, and it’s also beside the point. The main issue for the Court wasn’t the policy question of vaccine mandates. It is, as Justice

Neil Gorsuch

pointed out in a concurrence, who decides on the policy: “The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

The disappointment was the Court’s 5-4 decision upholding the mandate on 10 million health-care workers. The Chief and Justice

Brett Kavanaugh

joined the liberals in ruling that the Centers for Medicare and Medicaid Services did have proper legislative authority.

CMS found broad latitude to regulate healthcare providers when “necessary in the interest of the health and safety of individuals who are furnished services.” But that judgment was taken to task in a sharp dissent by Justice

Clarence Thomas,

joined by Justice Gorsuch and Justices

Samuel Alito



Coney Barrett.

The government “fell back on a constellation of statutory provisions that each concern one of the 15 types of medical facilities that the rule covers,” Justice Thomas writes. “The majority, too, treats these scattered provisions as a singular (and unqualified) delegation to the Secretary to adopt health and safety regulations.”

We think the dissenters have the better reading of the healthcare law, but at least the CMS statute has some relation to the health regulation it imposed. Had the Court blessed OSHA’s mandate on private employers, the message to regulators would have been that they can do whatever they want as long as they call it an emergency.

The Court must “enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans,” Justice Gorsuch wrote in his concurrence. “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.”

Journal Editorial Report: But do the federal agencies have this power absent a specific grant of authority from Congress? Images: AFP/Getty Images Composite: Mark Kelly

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Appeared in the January 14, 2022, print edition as ‘A Split Decision on Vaccine Mandates.’


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