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 Nationâs 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 COVIDâ19 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 COVIDâ19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
Many States, businesses, and nonprofit organizations challenged OSHAâs 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 OSHAâs rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHAâs mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.
Boom.
Section 1 of the decision is just a bunch of background, so I’m going to skip most of it, except for this part:
B.
On September 9, 2021, President Biden announced âa new plan to require more Americans to be vaccinated.â Remarks on the COVIDâ19 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 âto ensure their workforces are fully vaccinated or show a negative test at least once a week.â Ibid. The purpose of the rule was to increase vaccination rates at âbusinesses all across America.â Ibid. In tandem with other planned regulations, the administrationâs goal was to impose âvaccine requirementsâ on âabout 100 million Americans, two-thirds of all workers.â 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 Bidenâs announcement, the rule applies to all who work for employers with 100 or more employees. There are narrow exemptions for employees who work remotely â100 percent of the timeâ or who âwork exclusively outdoors,â 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.
Absolutely ridiculous.
Now on to Section II:
II.
The Sixth Circuit concluded that a stay of the rule was not justified. We disagree.
A.
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 COVIDâ19 vaccine or undergo weekly medical testing at their own expense. This is no âeveryday exercise of federal power.â In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the livesâand healthâof a vast number of employees.
Indeed.
âWe expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.â Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021). There can be little doubt that OSHAâs mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes the Secretaryâs 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 âoccupational safety and health standardsâ (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect âemployeesâ from grave danger in the workplace). Confirming the point, the Actâs 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 OSHAâs sphere of expertise.
The dissent protests that we are imposing âa limit found no place in the governing statute.â Post, at 7 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). Not so. It is the text of the agencyâs Organic Act that repeatedly makes clear that OSHA is charged with regulating âoccupationalâ hazards and the safety and health of âemployees.â See, e.g., 29 U. S. C. §§652(8), 654(a)(2), 655(b)â(c).
I think I know where they’re going here:
The Solicitor General does not dispute that OSHA is limited to regulating âwork-related dangers.â Response Brief for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She instead argues that the risk of contracting COVIDâ19 qualifies as such a danger. We cannot agree. Although COVIDâ 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVIDâ19 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 lifeâsimply because most Americans have jobs and face those same risks while on the clockâwould significantly expand OSHAâs regulatory authority without clear congressional authorization.
Well put.
The dissent contends that OSHAâs mandate is comparable to a fire or sanitation regulation imposed by the agency. See post, at 7â9. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, âcannot be undone at the end of the workday.â In re MCP No. 165, 20 F. 4th, at 274 (Sutton, C. J., dissenting). Contrary to the dissentâs contention, imposing a vaccine mandate on 84 million Americans in response to a worldwide pandemic is simply not âpart of what the agency was built for.â 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 COVIDâ19. Where the virus poses a special danger because of the particular features of an employeeâs job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVIDâ19 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 COVIDâ19 that all face. OSHAâs indiscriminate approach fails to account for this crucial distinctionâ between occupational risk and risk more generallyâand accordingly the mandate takes on the character of a general public health measure, rather than an âoccupational safety or health standard.â 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. 117â2, 135 Stat. 4. See post, at 8. That legislation, signed into law on March 11, 2021, of course said nothing about OSHAâs 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).
THANK YOU.
It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kindâaddressing a threat that is untethered, in any causal sense, from the workplace. This âlack of historical precedent,â coupled with the breadth of authority that the Secretary now claims, is a âtelling indicationâ that the mandate extends beyond the agencyâs 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.
B.
The equities do not justify withholding interim relief. We are told by the States and the employers that OSHAâs 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. 25â32; Application in No. 21A247, pp. 32â 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. OSHAâs COVIDâ19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicantsâ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicantsâ 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 COVIDâ19 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 peopleâs 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 Courtâs precedents. There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the âgeneral power of governing,â 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 21â28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law Ann. § 2164 (West 2021).
The federal governmentâs 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 Constitutionâs separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: âWe expect Congress to speak clearlyâ if it wishes to assign to an executive agency decisions âof vast economic and political significance.â We sometimes call this the major questions doctrine.
OSHAâs mandate fails that doctrineâs 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 COVIDâ19. E.g., American Rescue Plan Act of 2021, Pub. L. 117â2, 135 Stat. 4. But Congress has chosen not to afford OSHAâor any federal agencyâthe authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove OSHAâs 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 ââwork-around.ââ 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 OSHAâs reply? It directs us to 29 U. S. C. § 655(c)(1). In that statutory subsection, Congress authorized OSHA to issue âemergencyâ regulations upon determining that âemployees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmfulâ and âthat such emergency standard[s] [are] necessary to protect employees from such danger[s].â According to the agency, this provision supplies it with âalmost unlimited discretionâ to mandate new nationwide rules in response to the pandemic so long as those rules are â reasonably relatedâ 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 OSHAâs mandate. See ante, at 5â6. Section 655(c)(1) was not adopted in response to the pandemic, but some 50 years ago at the time of OSHAâs 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 ânot authorize OSHA to issue sweeping health standardsâ that affect workersâ lives outside the workplace. Brief for Department of Labor, In re: AFLâCIO, No. 20â1158, pp. 3, 33 (CADC 2020). Yet that is precisely what the agency seeks to do nowâregulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.
PREACH.
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 governmentâs power to make the laws that govern us remains where Article I of the Constitution says it belongsâwith the peopleâs 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., AFLâCIO 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 âreduc[e] the degree to which they will be held accountable for unpopular actions.â R. Cass, Delegation Reconsidered: A Delegation Doctrine for the Modern Administrative State, 40 Harv. J. L. Pub. Polây 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 âwould dash the whole schemeâ 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 326â335 (2020); I. Wurman, Nondelegation at the Founding, 130 Yale L. J. 1490, 1502 (2021).
đĽđĽđĽđĽ
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, 485â486 (2015). Later, the agency may seek to exploit some gap, ambiguity, or doubtful expression in Congressâs statutes to assume responsibilities far beyond its initial assignment. The major questions doctrine guards against this possibility by recognizing that Congress does not usually âhide elephants in mouseholes.â Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). In this way, the doctrine is âa vital check on expansive and aggressive assertions of executive authority.â 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 âgovernment by bureaucracy supplanting government by the people.â A. Scalia, A Note on the Benzene Case, American Enterprise Institute, J. on Govt. & Soc., JulyâAug. 1980, p. 27. And both hold their lessons for todayâs 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 OSHAâs reading, the law would afford it almost unlimited discretionâand certainly impose no âspecific restrictionsâ that âmeaningfully constrai[n]â the agency. Touby v. United States, 500 U. S. 160, 166â167 (1991). OSHA would become little more than a âroving commission to inquire into evils and upon discovery correct them.â 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 âimportant subjects, which must be entirely regulated by the legislature itself,â and others âof less interest, in which a general provision may be made, and power given to [others] to fill up the details.â Wayman v. Southard, 10 Wheat. 1, 43 (1825). And on no oneâs account does this mandate qualify as some âdetail.â
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 agencyâs mandate. Instead, we only discharge our duty to enforce the lawâs 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 Constitutionâs 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.