Supreme Stakes on Vaccine Mandates

The Court’s ruling will echo far beyond the current pandemic 

WSJ Editorial. Excerpts:

"Take the CMS mandate. The Social Security Act authorizes the secretary of Health and Human Services to “make and publish such rules and regulations” that “may be necessary to the efficient administration” of Medicare and Medicaid programs. The Administration interprets this provision to let it impose almost any healthcare regulation it desires as long as it has some nexus with Medicare and Medicaid.  

CMS also says the mandate on healthcare workers is necessary because “fewer infected staff and lower transmissibility equates to fewer opportunities for transmission to patients.” This is questionable as more vaccinated individuals are infected with and spreading Covid’s Omicron variant.

But even if this is true, CMS skipped public comment and failed to consider narrower alternatives. It also didn’t fully examine the mandate’s costs, including unvaccinated healthcare workers who are laid off, resulting in staff shortages and lower-quality care. Several states have had to call in the National Guard to keep hospitals open.

OSHA’s mandate is similarly sloppy and excessive. The “emergency temporary standard” requires workers of private employers with 100 or more employees to be vaccinated or tested weekly. Fifty years ago Congress said OSHA can impose emergency standards that are “necessary” to protect workers exposed to “grave danger” at workplaces.

The agency has used this authority a mere 10 times, and almost always to regulate toxins like benzene in particular industries. It has never sought to protect tens of millions of Americans from an omnipresent pathogen.

Both mandates also appear to violate the Court’s major questions doctrine that holds Congress must “speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” That’s the doctrine six Justices reiterated last summer in blocking the Centers for Disease Control and Prevention’s rental eviction moratorium.

“Today’s emergency rule is not an everyday exercise of federal power,” writes Sixth Circuit Chief Judge Jeffrey Sutton, in his powerful dissenting opinion from the Sixth Circuit’s decision not to consider the case en banc.

After a careful delineation of the administrative law, he concludes: “A blunt national vaccine mandate for 80 million workers with little regard to the relevant employment circumstances—well-spaced or not, together or apart, high risk individuals or not, indoors or mainly outdoors—was not necessary under the Act, and Congress did not clearly say otherwise.”"