Hot off the presses:
6-3 ruling. Even Roberts voted to strike it down. The healthcare worker vaccine mandate was allowed to stand (I believe it was 5-4).
Get fucked, Employer Vaccine Mandate.
America: land of the free once again.
Huge win for freedom. Huge win for people who believe having a job should not be contingent upon receiving regular shots of an experimental “vaccine” that doesn’t even work.
And a huge win for people who believe that if the government wants to impose a vaccine mandate on everyone, it should pass a law to do so and not farm it out to the bureaucracy.
AND on the same day the Kyrsten Sinema foiled the Democrats’ plan to abolish the filibuster and ram through election-rigging legislation.
Trump may be out of the White House, but he left us with 3 high quality Supreme Court Justices who have our backs (at least on the matter of vaccine mandates).
The old orange son of a gun came through.
The ruling can be found here, and I’m going to dive into it:
“PER CURIAM. The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. 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.
Section 1 of the decision is just a bunch of background, so I’m going to skip most of it, except for this part:
On September 9, 2021, President Biden announced “a new plan to require more Americans to be vaccinated.” Remarks on the COVID–19 Response and National Vaccination Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” Ibid. The purpose of the rule was to increase vaccination rates at “businesses all across America.” Ibid. In tandem with other planned regulations, the administration’s goal was to impose “vaccine requirements” on “about 100 million Americans, two-thirds of all workers.” Id., at 3.
After a 2-month delay, the Secretary of Labor issued the promised emergency standard. 86 Fed. Reg. 61402 (2021). Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more employees. There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely illusory. Id., at 61460. The Secretary has estimated, for example, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. Id., at 61461.
Now on to Section II:
The Sixth Circuit concluded that a stay of the rule was not justified. We disagree.
Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees.
“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021). 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. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace). Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. See, e.g., §§651, 653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.
The dissent protests that we are imposing “a limit found no place in the governing statute.” Post, at 7 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). Not so. It is the text of the agency’s Organic Act that repeatedly makes clear that OSHA is charged with regulating “occupational” hazards and the safety and health of “employees.” See, e.g., 29 U. S. C. §§652(8), 654(a)(2), 655(b)–(c).
I think I know where they’re going here:
The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.
The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. See post, at 7–9. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, “cannot be undone at the end of the workday.” In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). Contrary to the dissent’s contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not “part of what the agency was built for.” Post, at 10.
Anyone with a brain knows this.
But the thing about radical leftists is, they don’t care. They don’t believe in limitations on government power. They believe the government should have unlimited power to do anything it wants.
Their argument is not that OSHA is clearly and statutorily granted the power to impose a vaccine mandate; their argument is that Covid is Bad And Scary and thus it doesn’t matter what the law says, the government should be able to do any and everything it wants in order to beat back this disease.
But there are rules. This isn’t ‘Nam.
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.” 29 U. S. C. §655(b) (emphasis added).
In looking for legislative support for the vaccine mandate, the dissent turns to the American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. See post, at 8. That legislation, signed into law on March 11, 2021, of course said nothing about OSHA’s vaccine mandate, which was not announced until six months later. In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021).
It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This “lack of historical precedent,” coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the mandate extends beyond the agency’s legitimate reach. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted).*
Right, because it was haphazardly thrown together.
The equities do not justify withholding interim relief. We are told by the States and the employers that OSHA’s mandate will force them to incur billions of dollars in unrecoverable compliance costs and will cause hundreds of thousands of employees to leave their jobs. See Application in No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32– 33; see also 86 Fed. Reg. 61475. For its part, the Federal Government says that the mandate will save over 6,500 lives and prevent hundreds of thousands of hospitalizations. OSHA Response 83; see also 86 Fed. Reg. 61408.
But how many Covid-19 infections will be prevented because of the mandate? None.
It is not our role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes. 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. 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.
I’m looking forward to the Democrats shamelessly demagoguing about how the Supreme Court has just sentenced 6,500 people to die. You know it’s coming.
It is now established as precedent: OSHA does not have the authority to impose a universal vaccination requirement.
The applications for stays presented to JUSTICE KAVANAUGH and by him referred to the Court are granted. OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court.
It is so ordered.
I am not a legal expert so I don’t know what this means, but it doesn’t appear the Supreme Court has decided this matter with finality, does it? At least that’s not what I’m getting from this paragraph. I could be wrong, though.
Now I want to move on to the concurring opinion written by Justice Gorsuch and joined by Thomas and Alito. These are the three most reliably conservative and based Justices on the high court.
JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.
The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This 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.
The majority opinion, written by Justice Kavanaugh, did not really cut to the heart of the matter. Gorsuch, Thomas and Alito do here.
I start with this Court’s precedents. There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the “general power of governing,” including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. National Federation of Independent Business v. Sebelius, 567 U. S. 519, 536 (2012) (opinion of ROBERTS, C. J.); U. S. Const., Amdt. 10. And in fact, States have pursued a variety of measures in response to the current pandemic. E.g., Cal. Dept. of Public Health, All Facilities Letter 21–28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law Ann. § 2164 (West 2021).
The federal government’s powers, however, are not general but limited and divided. See McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. 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.” We sometimes call this the major questions doctrine.
OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA. Approximately two years have passed since this pandemic began; vaccines have been available for more than a year. Over that span, Congress has adopted several major pieces of legislation aimed at combating COVID–19. E.g., American Rescue Plan Act of 2021, Pub. L. 117–2, 135 Stat. 4. But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation. See S.J. Res. 29, 117th Cong., 1st Sess. (2021).
It seems, too, that the agency pursued its regulatory initiative only as a legislative “‘work-around.’” BST Holdings, L.L.C. v. OSHA, 17 F. 4th 604, 612 (CA5 2021). Far less consequential agency rules have run afoul of the major questions doctrine. E.g., MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994) (eliminating ratefiling requirement). It is hard to see how this one does not.
Now we’re getting to the heart of the matter here: this OSHA mandate is (was, lol) a regulatory/bureaucratic “work-around” to avoid having to actually have Congress pass a law.
The would-be vaccine mandate was just the latest in a long line of similar actions, and over the years, we have come to be governed not by Congress, but by the many agencies and departments and administrations that comprise the federal bureaucracy. Instead of our elected representatives in Congress passing laws that govern our lives, unelected bureaucrats and officials and regulators are the ones who issue the “rules” that govern our lives.
What is OSHA’s reply? It directs us to 29 U. S. C. § 655(c)(1). In that statutory subsection, Congress authorized OSHA to issue “emergency” regulations upon determining that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and “that such emergency standard[s] [are] necessary to protect employees from such danger[s].” According to the agency, this provision supplies it with “almost unlimited discretion” to mandate new nationwide rules in response to the pandemic so long as those rules are “ reasonably related” to workplace safety. 86 Fed. Reg. 61402, 61405 (2021) (internal quotation marks omitted).
The Court rightly applies the major questions doctrine and concludes that this lone statutory subsection does not clearly authorize OSHA’s mandate. See ante, at 5–6. Section 655(c)(1) was not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s creation. Since then, OSHA has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals. See In re: MCP No. 165, 20 F. 4th 264, 276 (CA6 2021) (Sutton, C. J., dissenting from denial of initial hearing en banc).
As the agency itself explained to a federal court less than two years ago, the statute does “not authorize OSHA to issue sweeping health standards” that affect workers’ lives outside the workplace. Brief for Department of Labor, In re: AFL–CIO, No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.
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. E.g., 8 U. S. C. § 1182(a)(1)(A)(ii). We have nothing like that here.
A few months ago, when I looked into the matter of both forced medical procedures in general (Buck v. Bell, 1927) and vaccine mandates more narrowly (Jacobson v. Massachusetts, 1905) and how the Supreme Court and federal government has dealt with them in the past, it became clear to me that these were not matters that were to be decided by a federal regulatory agency, but by Congress. And really it’s a power that belongs predominantly to the state and local governments.
Why does the major questions doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.
This is what it’s all about, right here. Are we to be ruled by administrative agencies, or by our elected representatives? Gorsuch, Thomas and Alito are taking aim squarely at the increasingly tyrannical and undeniably overpowered federal bureaucracy.
In this respect, the major questions doctrine is closely related to what is sometimes called the nondelegation doctrine. Indeed, for decades courts have cited the nondelegation doctrine as a reason to apply the major questions doctrine. E.g., Industrial Union Dept., AFL–CIO v. American Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion). Both are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.
It’s about damn time we remembered that.
The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials. Sometimes lawmakers may be tempted to delegate power to agencies to “reduc[e] the degree to which they will be held accountable for unpopular actions.” R. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. Pub. Pol’y 147, 154 (2017). But the Constitution imposes some boundaries here. Gundy, 588 U. S., at ___ (GORSUCH, J., dissenting) (slip op., at 1). If Congress could hand off all its legislative powers to unelected agency officials, it “would dash the whole scheme” of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives. Department of Transportation v. Association of American Railroads, 575 U. S. 43, 61 (2015) (ALITO, J., concurring); see also M. McConnell, The President Who Would Not Be King 326–335 (2020); I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1502 (2021).
The major questions doctrine serves a similar function by guarding against unintentional, oblique, or otherwise unlikely delegations of the legislative power. Sometimes, Congress passes broadly worded statutes seeking to resolve important policy questions in a field while leaving an agency to work out the details of implementation. E.g., King v. Burwell, 576 U. S. 473, 485–486 (2015). Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congress’s statutes to assume responsibilities far beyond its initial assignment. The major questions doctrine guards against this possibility by recognizing that Congress does not usually “hide elephants in mouseholes.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). In this way, the doctrine is “a vital check on expansive and aggressive assertions of executive authority.” United States Telecom Assn. v. FCC, 855 F. 3d 381, 417 (CADC 2017) (Kavanaugh, J., dissenting from denial of rehearing en banc); see also N. Richardson, Keeping Big Cases From Making Bad Law: The Resurgent Major Questions Doctrine, 49 Conn. L. Rev. 355, 359 (2016).
Whichever the doctrine, the point is the same. Both serve to prevent “government by bureaucracy supplanting government by the people.” A. Scalia, A Note on the Benzene Case, American Enterprise Institute, J. on Govt. & Soc., July–Aug. 1980, p. 27. And both hold their lessons for today’s case.
Scalia: the GOAT.
Gorsuch is doing a great job filling his shoes.
On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate. On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority. Under OSHA’s reading, the law would afford it almost unlimited discretion—and certainly impose no “specific restrictions” that “meaningfully constrai[n]” the agency. Touby v. United States, 500 U. S. 160, 166–167 (1991). OSHA would become little more than a “roving commission to inquire into evils and upon discovery correct them.” A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 551 (1935) (Cardozo, J., concurring). Either way, the point is the same one Chief Justice Marshall made in 1825: There are some “important subjects, which must be entirely regulated by the legislature itself,” and others “of less interest, in which a general provision may be made, and power given to [others] to fill up the details.” Wayman v. Southard, 10 Wheat. 1, 43 (1825). And on no one’s account does this mandate qualify as some “detail.”
It’s time for Congress to retake the power from the bureaucracy.
The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. 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.
Neil Gorsuch is an American hero. This man gets it.
What this case is really about is simple: who governs this country? Is it our elected representatives in Congress? Or is it unelected bureaucrats and regulators?
If you want a vaccine mandate, then pass a law. Put it up for a vote.
Oh wait: they already have, and it was rejected.
No more of this “get the bureaucrats to do something the politicians are too cowardly to do.”
Gorsuch, Thomas and Alito are all BASED.
The dissenting judges–Breyer, Sotomayor and Kagan–are all cringe and bluepilled. We’re not even going to bother looking at their dissenting opinion.
Why would we care about the opinion of people who don’t even know basic facts about the Covid-19 pandemic? All three of those justices showed themselves to be extraordinarily ignorant in last Friday’s oral arguments. Their dissent should be crumped up and tossed in the garbage where it belongs.
There are a lot more problems with the mandate that went unaddressed by the Supreme Court:
- When does the mandate expire? This is problem #1. It is simply unacceptable to have an indefinite vaccine mandate.
- What about natural immunity? Natural immunity is far stronger than Vaccine™ “immunity.” Why is natural immunity never credited or mentioned? Very un-scientific.
- What about booster shots? The OSHA mandate defines fully vaccinated as having 2 shots. It doesn’t mention the boosters.
- What about the fact that some people are higher risk than others? Why should everyone have to be Vaccinated™ when not everyone is threatened by Covid-2019?
- What about the fact that the most high-risk subgroup of the population–the elderly–is not covered by the mandate? The fact that most old people in this country have gotten the vaccine is irrelevant. The point is that any common sense-based vaccine mandate would not be a nationwide, blanket one-size-fits all policy–it would be targeted to the most vulnerable subgroups out there.
- What about the fact that the OSHA mandate was issued when Delta was the main strain of the virus? Delta is basically gone now. Omicron is the main strain now. Omicron is way milder and more contagious than Delta. What revisions did OSHA make to its mandate in light of omicron? Any?
Obviously all these questions are irrelevant because the OSHA mandate is dead, but they are relevant questions about vaccine mandates in general.
Which leads to this final question I have: the Supreme Court has made it clear that OSHA does not have the power to impose a vaccine mandate on 84 million Americans.
But what if another agency tries to do it? What if the Biden people say, “Okay, our OSHA plan got shot down, but what if we try doing it through XYZ federal agency?”
I’m not sure what other agency they’d try to go through with OSHA off the table.
In fact, they probably chose to go through OSHA because they thought it was their best (or perhaps only?) option to impose the vax mandate by bureaucratic edict.
In other words, if the CDC or NIH could’ve imposed the vax mandate, they probably would’ve done it themselves. But the Biden people thought OSHA was their best (or, again, perhaps only) avenue.
I don’t know what comes next here.
But I don’t think we’ve seen the end of the Democrats trying to impose vaccine mandates.
I expect some of the blue states to start legislatively enacting vaccine mandates. To be honest, I’m surprised it hasn’t happened already.