Supreme Court Blocks Vaccine Mandate for Employees of Big Businesses, But Not for Healthcare Workers

By Staff | January 13, 2022 | 5:35pm EST
(Photo by Win McNamee/Getty Images)
(Photo by Win McNamee/Getty Images)

( - The Supreme Court issued two opinions on Thursday dealing with the Biden Administration’s COVID-19 vaccine mandate, ruling in one that the administration could not order businesses with 100 or more employees to require their workers to be vaccinated or undergo regular testing and ruling in the other that the administration could order health-care facilities that receive Medicare or Medicaid funding to require their workers to be vaccinated.

“But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate,” Justice Gorsuch wrote in a concurring opinion in the first case. He was joined by Justices Clarence Thomas and Samuel Alito.

In that case—National Federation of Independent Business vs. Occupational Safety and Health Administration—the court issued an unsigned “per curiam decision” ruling against the OSHA vaccine mandate on businesses.

Justices Stephen Breyer, Sonio Sotomayor and Elena Kagan dissented from the opinion of the court. That means that Chief Justice John Roberts and Justice Amy Coney Barrett and Brett Kavanaugh sided with Justices Gorsuch, Thomas and Alito, even though they did not expressly sign onto any opinion.

The per curiam opinion argues that the law creating OSHA did not empower it to issue vaccine mandates.

“‘We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,’” said the per curiam opinion. “There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority.

“The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not,” says the opinion. “The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”

In Biden vs. Missouri, where the court ruled in favor of the administrations’ requirement that employees of health care facilities that receive Medicare or Medicaid funding must be vaccinated, the court also issued a per curiam opinion.

Justices Thomas dissented and was joined in his dissenting opinion by Justices Alito, Gorsuch and Barrett.

Chief Justice Roberts and Justice Kavanaugh, while not writing opinions in the case, sided with Justices Breyer, Kagan and Sotomayor.

“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,’” said the unsigned per curiam opinion. “COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Human Services determined that a COVID–19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.

“He accordingly concluded that a vaccine mandate is ‘necessary to promote and protect patient health and safety’ in the face of the ongoing pandemic,” said the per curiam. “The rule thus fits neatly within the language of the statute.”  

Justice Thomas disagreed.

“Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere-specifically authorize one,” wrote Thomas in his dissent that was joined by Alito, Gorsuch and Barrett.

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

“These cases are not about the efficacy or importance of the COVID-19 vaccine,” said Thomas. “They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”


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