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SCOTUS ruling over OSHA vaccine policy unwisely overrules experts

Vaccines

The U.S. Supreme Court today issued two decisions on vaccine mandates, unfortunately one of which will have adverse effects on our nation’s ability to stem the deadly pandemic. In two separate rulings, the high court blocked a “vaccination-or-test” rule for large employers, while upholding a mandate requiring federal health care workers to be vaccinated.

Both cases were brought to the high court on an emergency basis, meaning the cases are not over. The Supreme Court fast-tracked them, hearing oral arguments just last week on Jan. 7. Today’s rulings, however, will remain in effect while these cases wend their way through the lower courts.

The first most closely-watched case, National Federation of Independent Business v. Department of Labor, involved a rule from the Occupational Safety and Health Administration (OSHA) requiring employers with 100 or more employees to implement vaccine-or-test policies in the workplace. In an expected 6-3 ruling, the court found that OSHA lacked statutory authority to issue such a rule.

The court concluded, “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.”

The ultraconservative majority also stated that, “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 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.”

Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor, also as expected, dissented. They wrote, “Nothing about that measure is so out-of-the-ordinary as to demand a judicially created exception from Congress’s command that OSHA protect employees from grave workplace harms.”

They continued, “The lives and health of the nation’s workers are at stake. And the majority deprives the government of a measure it needs to keep them safe.”

The last paragraph from their dissent is the really salient one:

“When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”

The second case, Biden v. Missouri, involved a vaccine requirement by the Centers for Medicare and Medicaid for health facilities receiving funding under its federal programs. In a 5-4 decision, the court allowed the mandate to take effect.

Here, the high court found that the Biden administration did have the authority to issue such a mandate. “Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.’”

The majority noted such conditions of participation are routinely imposed to protect health and safety and relate to the qualifications and duties of healthcare workers themselves.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett dissented.

“Reason and science prevailed in only one instance today,” comments FFRF Co-President Annie Laurie Gaylor. “During a week in which we’re seeing a record number of infections — over one and a half million cases a day with a record number of hospitalizations — it’s reprehensible and incomprehensible that the court has failed our nation. Our government should and must have the ability to proactively take measures to keep our workforce safe from this deadly contagion.”