The U.S. Supreme Court decided two matters involving vaccine mandates by the Biden administration. The oral arguments, which were heard back-to-back, addressed whether the Occupational Safety and Health Administration (OSHA) had the authority to enforce a federal mandate ordering private companies and organizations with 100 or more employees to compel their employees to get a COVID-19 vaccine as a condition of employment and whether the Centers for Medicare and Medicaid (CMS) could mandate the vaccine for people working at a CMS-funded health care facility that accepts Medicare and Medicaid payments.
On Jan. 13, 2022 in a 6-3 split decision, the Court struck down the private employer mandate, finding that the order exceeded OSHA’s statutory authority. However, at the same time, the justices voted 5 to 4 to reinstate the vaccine mandate for personnel working in health care facilities that receive Medicare and Medicaid funding.1
OSHA Does Not Have the Power to Broadly Regulate Public Health
A legal challenge to the OSHA COVID-19 vaccine mandate was brought to the high court by an application from the National Federation of Independent Business and a coalition of states seeking emergency relief after a temporary stay issued by the Fifth Circuit Court was overturned by the Sixth Circuit Court.2
The question before the Court was whether OSHA had the legal authority to require a vaccine mandate for private employers. Finding that the Plaintiffs were likely to ultimately succeed on the merits of their claim that the Secretary of Health and Human Services, Xavier Becerra, exceeded his authority, the Supreme Court reinstated the stay.
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…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.3
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, who were outspoken about their anxiety and fear of COVID-19 disease during oral arguments, wrote in a dissenting opinion that the mandate falls within OSHA’s purview of protecting workers and that forced vaccination of individuals at the expense of losing a job would save 6,500 lives and prevent 250,000 hospitalizations over six months in the U.S.4
District Courts Stop the Health Care Workers Mandate Instituted by HHS in November 2021
On Nov. 5, 2021, HHS Secretary Becerra announced a new interim final rule, effective immediately without allowing the regular public notice and comment period, ordering that participating facilities receiving Medicare or Medicaid funding must require staff to receive the novel COVID vaccine (“Rule”) or risk losing funding.5
Numerous lawsuits followed, and the mandate was stayed by two district courts, which determined that the rule would likely ultimately be found to violate the Constitution based on separation of powers. Both district courts looked at the criteria for a preliminary injunction and determined that the facts and rule of law showed that the Plaintiffs established, “(1) the substantial likelihood of success on the merits, (2) that he is likely to suffer irreparable harm in the absence of a preliminary injunction, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.”6
The Louisiana court issued a nationwide injunction finding that the CMS rule violated the separation of powers and encroached on civil liberties stating, “During a pandemic such as this one, it is even more important to safeguard the separation of powers set forth in our Constitution to avoid erosion of our liberties.”7
The Missouri court found that the Plaintiffs were likely to succeed with the argument that CMS lacks the authority to issue such a mandate because, “the nature and breadth of the CMS mandate requires clear authorization from Congress—and Congress has provided none” and that, “Even in exigency, the Secretary cannot “bring about an enormous and transformative expansion in [his] regulatory authority without clear congressional authorization.”8
Vaccine Mandate for Health Care Workers Reinstated by Supreme Court
The Supreme Court disagreed with the district courts’ stay of the health care worker mandate by CMS. Finding that the HHS Secretary has the statutory authority to promulgate regulations it deems necessary for the Medicare and Medicaid programs, the Court lifted the stay and reinstated the COVID-19 vaccine mandate. Because Secretary Becerra had determined the vaccine would, “substantially reduce the likelihood that health care workers will contract the virus and transmit it to their patients,” the Court argued that it was within his jurisdiction to require the vaccine for all health care workers in Medicaid and Medicare funded institutions and exclude facilities from receiving federal funding should these conditions not be met.9 The Court explained ruling this way:
Such conditions have long included a requirement that certain providers maintain and enforce an “infection prevention and control program designed… to help prevent the development and transmission of communicable diseases and infections.10
The Court did not address whether the Secretary’s belief that vaccination would reduce the likelihood of contracting and transmitting COVID was reasonable, accurate or even based on facts. The Court’s review of Secretary Becerra’s determination that the vaccine mandate was required was limited to, “simply ensur[e] that the agency has acted within a zone of reasonableness.11
The Court further found that even though it took two months for the Secretary to prepare the 73-page rule, the impending winter flu season was justification to forgo the traditional public notice and comment period due to the good cause exception, and that the Secretary was not required to consult with the appropriate state agencies before implementing the rule.12
Four Supreme Court Justices Dissent from the Majority Opinion on COVID-19 Vaccine Mandate for 10 Million Health Care Workers
There were two dissents in this case, one written by Justice Clarence Thomas and signed by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett and one written by Justice Alito and signed by the same three Justices.
Justice Thomas’ dissent found that the government did not make a strong showing that it would ultimately succeed on the merits and that the statutory authority does not confer the power to the Secretary of Health and Human Services to authorize a vaccine mandate.13
The dissenting Justices disagreed with the majority that the provisions the government relied on to enforce the rule provided the necessary statutory authority to mandate a vaccine for 10 million health care workers and stated that if Congress wanted to grant CMS the authority to authorize a vaccine mandate across all CMS funded facilities, it would have specifically said so.
The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate.14
The dissenting opinion written by Justice Alito found that stronger statutory proof was required by the federal government to show that it has the authority to mandate a vaccine for 10 million health care workers and that it lacked the authority to implement a vaccine mandate in manner that it did.
Under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people. Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns. Today, how- ever, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators. In or- der to give individuals and entities who may be seriously impacted by agency rules at least some opportunity to make their views heard and to have them given serious consideration, Congress has clearly required that agencies comply with basic procedural safeguards. Except in rare cases, an agency must provide public notice of proposed rules, 5 U. S. C. §553(b); the public must be given the opportunity to comment on those proposals, §553(c); and if the agency issues the rule, it must address concerns raised during the notice-and-comment process… The rule may then be challenged in court, and the court may declare the rule unlawful if these procedures have not been followed.15
Justice Alito pointed out that the public notice and comment period may only be bypassed in rule making when good cause is shown and the rule must be “narrowly construed and only reluctantly countenanced.” He said CMS failed to meet this requirement when it took 10 months after the vaccine was widely available to enact the vaccine mandate on health care workers.16
Justice Alito wrote, “Today’s decision will ripple through administrative agencies’ future decision making” and warns of its effect on future federal government actions.17
Some Justices Cite Incorrect Information About COVID-19
Justices Sotomayor, Kagen and Breyer have been called out by the media for providing misinformation about COVID-19 and the vaccine during oral arguments. Justice Sotomeyer stated that the Omicron variant is as deadly as the Delta variant and that the unvaccinated are far more likely to get and transmit the virus than the vaccinated. Both of these assertions are false and do not acknowledge naturally acquired immunity.18 19 20 21
Justice Sotomayor alleged:
We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition, many on ventilators.22
As The Washington Times pointed out in an article entitled “Supreme Court justice letting fear cloud her judgment,” this claim is entirely false.23 During the first week of January 2022, about 30 percent of intensive care beds in hospitals were filled with COVID patients. Of the approximately 5,000 children who were hospitalized either with COVID, suspected of having COVID, or testing positive for COVID, many were actually hospitalized for an entirely unrelated matter pursuant to data from the Department of Health and Human Services.24
Justice Sotomayor also incorrectly stated, “we are now having deaths at an unprecedented amount.” The facts show that the amount of people dying of and with COVID is far less than it was a year ago and are not “unprecedented.” The average weekly number of recorded COVID deaths for the week of Jan. 19, 2021 was approximately 3,300 a day or 23,100 for the week,25 while the week of Jan. 19 2022 saw 1,754 recorded COVID deaths.26
According to John P. Ioannidis, MD, PhD, a Stanford University professor and physician-scientist, the risk of dying from COVID for younger people is close to zero. Dr. Ioannidis puts the survival rate for COVID in unvaccinated individuals under the age of 20 at 99.9987 percent. In addition, COVID-19 death statistics are variable as, according to the CDC, only five percent of all people of any age who died after having a COVID infection, died from COVID alone and not from another cause of death.27
However, it appears that preventing transmission was never the goal of the experimental COVID vaccines that were licensed for use by the FDA. Ezekiel Emanual, MD, PhD, one member of President Biden’s hand-picked COVID-19 Advisory Board, commented, “As with other vaccines, the goal is to prevent serious and deadly outcomes, not to prevent all cases of transmission and infection.”30
In August 2021, CDC director Rochelle Walensky, MD warned that fully vaccinated people who are not symptomatic could still spread the virus due to “breakthrough” infections. She said, “Our vaccines are working exceptionally well. They continue to work well with ‘Delta’ with regard to severe illness and death, but what they can’t do anymore is prevent transmission.”31
A study in the Lancet published in October 2021 showed that the vaccine only minimally reduced transmission of the virus, while another study showed that people infected with the Delta variant who had previously received the vaccine were less likely to transmit the virus to close contacts, but that protection waned considerably after three months.32
Supreme Court Ignores Natural Acquired Immunity
A large study by the CDC showed that prior infection with COVID-19 provided even better protection against re-infection with the virus than provided by vaccination alone. During the week of Oct. 3, 2021, a study comparing individuals who had either no prior SARS-CoV-2 infection or no vaccination, those who were vaccinated had a five-to-six fold lower rate of confirmed infection while those who had survived a previous infection showed between a 15-29 fold lower rate of confirmed infection. CDC epidemiologist, Benjamin Silk explains:
Surviving a previous infection now provided greater protection against a subsequent infection than vaccination.33
Many health care professionals working on the front lines in hospitals and other medical facilities have presumably been exposed to and recovered from COVID since the pandemic began almost two years ago. These findings have raised questions about the purpose of mandating a vaccine in the workplace that has proven to be ineffective at preventing infection with and transmission of the SARS-CoV-2 virus and why the Supreme Court failed to acknowledge the more robust protection against the disease offered by prior infection.
Scott Atlas, MD, a former White House COVID-19 Task Force adviser said that CMS’s denial of natural immunity in their vaccine mandate is, without precedent. He stated,
Our continued denial of superior protection in recovered individuals, with or without vaccination, compared to vaccinated individuals who’ve never had the infection. The denial of that is simply unprecedented in modern history, proven fact and decades of fundamental immunology are somehow denied.34
It appears that the justices were not provided with all the information they needed and some relied on incorrect data and misinformation to make their decision. As a Washington Times columnist put it, “Fear has no place in that decision-making process. If Sotomayor wants to express an opinion on vaccine mandates or any other issue for that matter, the least she can do is get the facts.”35
The Supreme Court Decision to Mandate the COVID-19 Vaccine for Health Care Workers Conflicts with Some State Laws
Christina Pushaw, communications director for Florida Governor Ron DeSantis stated that the Supreme Court’s opinion was contrary to existing Florida law, which prohibits vaccine mandates. She said Governor DeSantis will be evaluating the next steps, reiterating his position that no COVID-19 vaccine mandate will stand in Florida.
Pushaw emphasized that Florida law protects the right for all healthare workers in the state to receive a personal belief or medical exemption to receipt of COVID vaccine:
As for health care workers at facilities covered by the CMS mandate, their jobs are also protected under Florida law. If any worker cannot get vaccinated for reasons of personal beliefs or medical conditions, they must be granted an exemption upon request. Any worker can access the required exemption forms on the Florida Department of Health website. Therefore, there is no reason any Floridian should lose his or her job over a COVID vaccine mandate.36
Montana and Texas have similar laws and Executive Orders banning forced vaccination as a condition of employment.37 38 It is not yet clear how states that have banned vaccine mandates will address the recent Supreme Court decision.
Bills Have Been Introduced to Render the Supreme Court Decision Null and Void
U.S. Congresswomen Cathy McMorris Rodgers, who is a member of the House Energy and Commerce Committee said:
Regarding President Biden’s mandate on health care workers, the Supreme Court’s opinion doesn’t change reality. His mandate is hurting patient care and making workforce shortages worse. It has the potential to upend our health care system, shut down rural hospitals, and force people to delay care they need. That’s why to protect patient care, every Republican on the Energy and Commerce Committee is leading on a Congressional Review Act resolution to nullify this dangerous mandate.39
On Dec. 9, 2021, House Republicans introduced a resolution under the Congressional Review Act to end the health care workers vaccine mandate. U.S. Congressman Jedd Duncan stated:
To protect patient care and people’s jobs, every Republican on the Energy and Commerce Committee is leading to stop President Biden’s vaccine mandate on our health care workers. They’ve served as our frontline heroes during this pandemic. They deserve our gratitude —not mandates that force them to make a choice to comply with the government or lose their livelihoods altogether.40
Many bills seeking to ban employer vaccine mandates for health care workers have been filed in multiple states.41 These bills may be able to provide protections for health care workers seeking to make their own medical choices even though the Supreme Court reinstated the vaccine mandate for health care workers in a CMS-funded facility. For an up-to-date listing of bills filed in each state, go to www.nvicadvocacy.org.
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Click here to view References:
1 Mclaughin D. Supreme Court Strikes Workplace Vaccine Mandate Except for Health-Care Workers. National Review Jan. 13, 2022.
2 National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration et al. Ohio et al. v. Department of Labor, Occupational Safety and Health Administration. 595 U.S. 2022.
4 National Federation of Independent Business, et al. v. Department of Labor, Occupational Safety and Health Administration et al. Ohio et al. v. Department of Labor, Occupational Safety and Health Administration. 595 U.S. 2022 dissenting opinion.
5 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022.
6 LOUISIANA v. BECERRA Case No. 3:21-CV-03970. Nov. 30, 2021.
8 State of Missouri, et al. vs. Joseph R. Biden, JR. Case: 4:21-cv-01329-MTS Doc. #: 28 Filed: Nov. 29, 2021.
9 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022.
13 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022 Thomas J dissent.
15 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022 Alito J dissent.
18 Chamberlain S. Supreme Court’s liberal justices slammed over vax mandate statements. New York Post Jan. 7, 2022.
19 Phillips M. Liberal Supreme Court Justice Sonia Sotomayor under fire for overstating that 100,000 children are currently hospitalized with COVID and ‘many are on ventilators’ while Stephen Breyer says there have been 750 MILLION cases. Daily Mail Jan. 7, 2022.
20 Housman D. Justices Sonia Sotomayor And Stephen Breyer Read Obscenely False COVID-19 Misinformation Into Court Record. MSN Jan. 7, 2022.
21 Kresge N. Omicron Hospitalization Risk Is Far Below Delta’s in Two Studies. Bloomberg Dec 22, 2021.
22 Kiely E, Robertson L, Farley R et al. FactChecking the Justices’ COVID-19 Claims. FactCheck.org Jan. 10, 2022.
23 Constantine T. Supreme Court Justice letting fear cloud her judgment. Washington Times. Jan. 13 2022.
25 Feur W, Rattner N. U.S. reports record number of Covid deaths in January as new strains threaten progress. CNBC Jan. 27, 2021.
26 U.S. Centers for Disease Control and Prevention. COVID Data Tracker Weekly Review. Jan. 21, 2022.
27 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022 Thomas J dissent.
28 Barkoukis L. New Lancet Study Has Interesting Finding About Covid-19 Transmission Among the Vaccinated. Townhall Nov. 1, 2021.
29 Cáceres M. Vaccinated Americans are Being Hospitalized for COVID and Dying. The Vaccine Reaction Aug. 15, 2021.
30 Emanuel E, Bright R, Osterholm M et al. The truth about COVID vaccines: Not perfect, but they’re saving many lives. Yahoo! News Jan. 18, 2021.
31 Hains T. CDC Director: Vaccines No Longer Prevent You From Spreading COVID. Real Clear Politics Aug. 6, 2021.
32 TVR Staff. Outbreak of COVID in Fully Vaccinated and Tested Cruise Ship Passengers and Crew. The Vaccine Reaction Dec. 5, 2021.
33 Brueck H. CDC report finds prior infection provided strong protection against COVID-19 in 2021, but experts warn it’s ‘playing with dynamite’ to get sick on purpose. Insider Jan. 19, 2022.
34 Zhong A, Jekielek J. Denial of Natural Immunity in CMS Vaccine Mandate ‘Unprecedented in Modern History’: Scott Atlas. The Epoch Times Jan. 14, 2022.
35 Biden v. Missouri et al. Xavier Becerra, Secretary of Health and Human Services et al. Applicants v. Louisiana. 595 U.S. 2022 Thomas J, dissent.
36 Jones K. Florida Will Defy Biden Vaccine Mandate for Healthcare Workers: ‘The State Law Stands’. Mediaite Jan. 14, 2021.
37 Samuels I. Montana only state to ban vaccine requirements for employees. ABC News Aug. 20, 2021
38 LeBlanc P. Texas governor bans Covid-19 vaccine mandates by any employer in state. CNN Oct. 11, 2021.
39 Rodgers Statement on Supreme Court Vaccine Mandate Opinions. E & C Republicans. Jan. 13, 2022.
41 NVIC Advocacy Portal. List of actions, bills, and announcements for all states.