It is a big blow for the Biden administration
In a 6–3 decision yesterday, the Supreme Court suspended the Biden administration’s attempt to force a vaccine-or-weekly-test mandate on businesses that employ 100 or more workers.
The ruling was not directly on the merits of the case, but on whether the emergency regulation issued by the Occupational Safety and Health Administration (OSHA) should be suspended while court challenges proceed against it. That said, part of the court’s consideration in such a ruling is whether the underlying claim is likely to succeed. In ruling that it is likely to succeed, the majority signals that when they do finally hear the case, the administration will likely lose.
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The opinion in NFIB v. OSHA noted that OSHA’s rarely invoked “emergency temporary standards” had been used just nine times since the law enabling them was passed in 1970, and never for anything like a vaccine mandate. Nor is that sort of sweeping power implied by the law’s text, the court said.
“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” they said. In this case, the court could find no such delegation by the legislature. “The Act empowers the Secretary to set workplace safety standards,” they wrote, “not broad public health measures.”
The holding was issued per curiam — that is, it has no named author — with three liberal justices dissenting: Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito concurred separately to note that “Congress has chosen not to afford OSHA — or any federal agency — the authority to issue a vaccine mandate.” Based on that and other factors, they would hold that even 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.”
The court did deliver a partial victory to the administration yesterday, too, in the case of Biden v. Missouri. There the court held in a 5–4 unsigned opinion that a similar mandate that applies to workers at healthcare facilities participating in the Medicare and Medicaid programmes should remain in effect. Reasoning that the government has a longstanding practice of issuing regulations to ensure the health and safety of patients in such facilities, the majority held that the rule issued by the Health and Human Services Secretary “falls within the authorities that Congress has conferred upon him.”
Biden came to office insisting that the federal government would not make Covid-19 vaccination mandatory. In December 2020, he told reporters he would do everything in his power to encourage vaccination but could not force it upon unwilling Americans. A few months later, Press Secretary Jen Psaki confirmed that policy, saying in March 2021 that there would be “no federal mandate requiring everyone to obtain a single vaccination credential.” On July 29, Biden said: “It’s still a question whether the federal government can mandate the whole country.”
By September, they had resolved that question, in their own minds, at least. Whether the Supreme Court will agree in the end is less certain.
Kyle Sammin is the senior editor of the Philadelphia Weekly and the co-host of the Conservative Minds podcast. Follow him on Twitter at @KyleSammin.