- The Washington Times - Thursday, January 13, 2022

The Supreme Court put President Biden’s coronavirus vaccine mandate for large companies on hold Thursday, poking a hole in his plans to prod reluctant Americans to get the shots.

The justices did, though, allow a smaller vaccine mandate on medical workers to take effect.

In a series of unsigned opinions, the justices said the issue before them is neither the severity of the pandemic nor the effectiveness of the vaccines, but rather whether Congress, which sets national policy on these matters, gave the executive branch authority to impose such intrusive directives.

In the case of the medical workers, the court ruled 7-2 that Congress did grant such powers; in the case of the business mandate, the justices said in a 6-3 decision that Congress did not.

“The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have,” the court said.



Mr. Biden, who originally said he didn’t support mandates, reversed himself last year. He announced Occupational Safety and Health Administration mandates for federal workers, federal contractors, medical workers and the broader private workforce.

His goal was to try to close gaps in vaccination rates in the U.S., which trail other major economies.

The rulings technically don’t end the cases, which are still being litigated in the lower courts. But the justices’ decisions mean the OSHA mandate will be halted, and the medical workers policy can remain in effect, while the cases proceed on the merits.

Congress could step in and pass legislation to impose the mandate or to grant OSHA the power to do so. But that’s unlikely, given the deep polarization over the concept of mandates.

Former President Donald Trump cheered Mr. Biden’s stumble.

“Biden promised to shut down the virus, not the economy but he has failed miserably on both — and mandates would have further destroyed the economy,” Mr. Trump said in a statement.

All three of Mr. Trump’s Supreme Court appointees were part of the majority opinions in each decision.

House Speaker Nancy Pelosi, California Democrat, took solace in the ruling on health worker mandates.

“However, it is alarming that, in the midst of a deadly pandemic, the court has chosen to ignore the science and the law by preventing the administration from keeping Americans safe in the workplace,” she said.

Justice Department attorneys warned the court that any delays would mean more deaths.

“There are lives being lost every day,” Solicitor General Elizabeth Prelogar told the justices during oral arguments last week.

But the Republican-appointed majority on the high court signaled skepticism of OSHA’s policy, which required businesses that have 100 or more employees to demand vaccines. Alternatively, the businesses could opt for masks and weekly testing of all employees.

The OSHA mandate applied to two-thirds of the private-sector workforce, or 84 million people. Many of them are already vaccinated.

But the administration has identified those who aren’t vaccinated as health threats to themselves and those around them and was seeking ways to prod them into getting the shots.

OSHA calculated that the mandate would prevent 250,000 hospitalizations and save 6,500 lives over the next six months.

Ms. Prelogar argued that Congress, when it created OSHA five decades ago, envisioned the need for broad powers to protect workers, and the pandemic fits in that model.

But the Republican-appointed justices said they saw no evidence that Congress had in mind this sort of mandate.

“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,” Justice Neil M. Gorsuch wrote in a concurring opinion.

In their dissent, the court’s three Democratic-appointed justices suggested that the pandemic was extreme enough to justify OSHA’s intervention.

Justice Stephen G. Breyer said the decision will “imperil the lives of thousands of American workers and the health of many more.”

He said the court was “acting outside of its competence” and should have left the administration a free hand.

“When we are wise, we know enough to defer on matters like this one,” he wrote in an opinion joined by Justices Elena Kagan and Sonia Sotomayor.

Justice Sotomayor stoked controversy during the oral arguments by saying 100,000 children were hospitalized with COVID. She was off by about 96,000, according to the Biden administration’s health experts.

The OSHA mandate began to take effect Monday, with businesses required to have unvaccinated employees wear masks. The full force of the mandate was still weeks away, however, with the testing part to begin Feb. 9.

Businesses can now unwind those plans if they choose.

Medical workers, though, will have to get the shots.

That mandate applies to about 10 million people who are funded in part by money from the Centers for Medicare & Medicaid Services, the federal agency that oversees the two big public health care programs.

It will be phased in over the next two months.

In their 7-2 ruling, the justices said there was no doubt that Congress intended CMS to have powers to ensure a healthy medical workforce, and a COVID-19 vaccine falls under that.

“Of course the vaccine mandate goes further than what the secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before,” the majority said.

Dissenting were Justices Clarence Thomas and Samuel A. Alito Jr., two Republican appointees, who said they didn’t find anything in the law to suggest Congress intended this sort of vaccine mandate power for CMS.

“If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not,” Justice Thomas wrote.

For more information, visit The Washington Times COVID-19 resource page.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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