On January 13, the Supreme Court allowed the Centers for Medicare and Medicaid Services’ (CMS) mandate requiring 10.4 million health care workers to be vaccinated against COVID-19 to go into effect, while blocking an Occupational Safety and Health Administration (OSHA) rule that would have required 84.2 million employees of large employers to be either vaccinated or masked and tested weekly. These decisions are technically not final. They addressed the question of whether to block the mandates preliminarily while the lower courts hear challenges. But the Court effectively decided the cases, leaving little left for the lower courts to decide.
Both cases turn on the question of whether Congress has empowered the agencies to enact mandates. OSHA and CMS had adopted the mandates as regulations, which they asserted were permissible under their governing statutes. Both the OSHA and Medicare and Medicaid statutes appear to authorize broad agency action. The Medicare and Medicaid statutes give CMS the authority to adopt “requirements that [it] finds necessary in the interest of the health and safety of individuals who are furnished services” by most Medicare and Medicaid facilities; the OSHA statute empowers the agency to adopt standards “reasonably necessary or appropriate to provide safe or healthful employment.” Neither statute details what standards are permissible. Instead, like most regulatory laws, both grant broad authority to decide when and how to exercise power, based on the agencies’ own expert assessment of the immediate situation.
In the OSHA case, the 5-to-4 majority held that COVID did not represent the type of threat that falls within the agency’s workplace regulatory powers. Instead, they said it amounted to a type of general public health threat that the agency never before had sought to regulate. (Justice Gorsuch also asserted OSHA was trying to “induce individuals to undertake a medical procedure that affects their lives outside the workplace.”) In the CMS case, the Court held that the vaccination mandate had a clear nexus to patient health and safety and that CMS had a history of imposing regulations that safeguard patients and restrict conduct by employers and employees related to safety.
The OSHA decision leaves businesses free to adopt their own vaccine mandates, except in a few states where they are prohibited. The Court also left the door open for OSHA to develop a narrower mandate for employers whose employees are at greater risk, for example, those with “cramped or crowded” working environments. OSHA also can cite individual employers with hazardous work sites under its “general duty” clause, which allows OSHA to regulate serious recognized hazards even if no general standard applies. Conversely, the CMS decision did not entirely close the door to courts finding mandates impermissible in certain Medicare- and Medicaid-funded facilities (such as infusion providers) where the enabling statute does not explicitly refer to health and safety standards.
Gorsuch and Thomas Opinions
While the majority in both cases relied primarily on its interpretation of the language of the statutes, Justice Gorsuch’s concurrence in the OSHA case and Justice Thomas’s dissent in the CMS case went further. They argued that when agency decisions were of “vast economic and political significance” or when federal agencies assume authority traditionally exercised by the state (like public health regulation), Congress must very explicitly authorize the agency action. Justice Gorsuch also suggested that if Congress had attempted to vest agencies with the scope of power they sought to exercise, such a law would have been unconstitutional. In this regard, Justice Gorsuch invoked the “non-delegation doctrine,” which proponents interpret as prohibiting Congress from delegating authority to agencies without “specific restrictions” that “meaningfully constrain the agency.” Importantly, the majority in both cases rejected these novel arguments, deciding the case on statutory rather than constitutional grounds.
The Breyer OSHA Dissent
Justices Breyer, Kagan, and Sotomayor dissented in the OSHA case, contending that OSHA’s vaccination or test-and-mask rule falls squarely within the authority granted by Congress. Quoting the text of the OSHA statute, the dissenters observed that a virus that had caused 725,000 American deaths and hospitalized millions is clearly a “new hazard” and “physically harmful” agent posing a “grave danger” and that the standard was “necessary” to protect against it in the workplace. Congress nowhere limited OSHA from addressing hazards that exist outside as well as within the workplace. Employees often must work for extended periods of time in close contact with others and are unable to protect themselves as they can outside the workplace by avoiding situations where COVID exposure is likely.
Moreover, the dissent contended, to temporarily block an injunction, as the Court did in the OSHA case, it must conclude that the balance of harms and public interest favors blocking the agency’s action. In this case, the economic harms of allowing the mandate to go forward are outweighed by the thousands of lives the mandate will save.
What’s at Stake
In the end, the cases turn on who should decide what needs to be done to stem the most dangerous pandemic to face the United States in a century. The majority in both cases stated that Congress should decide, and further held that Congress had authorized CMS, but not OSHA, to impose a vaccine mandate. Justices Gorsuch, Thomas, and Alito would have gone further and seem to say that Congress itself must decide explicitly whether to impose a mandate. The dissenters in the OSHA case, however, noted that the Court itself was deciding whether vaccine mandates were permissible. They contended that the Court, which is unelected and lacks scientific and medical expertise, in fact decided the cases based on its own policy preferences.