The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In two just-issued decisions, NFIB v. Department of Labor and Biden v. Missouri, the Supreme Court ruled against the Occupational Safety and Health Administration's Covid vaccine mandate for workers employed by large employers with over 100 employees (employees who remain unvaccinated are required to wear masks and submit to regular Covid testing), but upheld the narrower Centers For Medicare and Medicaid Services vaccination mandate for health care workers at facilities receiving federal Medicare and Medicaid funds.
For reasons I outlined in a recent NBC article, I think both decisions are correct. But I don't fully agree with the Court's reasoning in the OSHA case.
NFIB v. Department of Labor is a 6-3 ruling, split along ideological lines, with all six conservative justices in the majority, and the three liberals dissenting. Here is the key passage in the per curiam majority opinion:
Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no "everyday exercise of federal power."In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees.
"We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance." Alabama Assn. of Realtors v. Department of Health and Human Servs. , 594 U. S. ___, ___ (2021) [the recently decided eviction moratorium case]…. 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. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set "occupational safety and health standards" (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect "employees" from grave danger in the workplace). Confirming the point, the Act's provisions typically speak to hazards that employees face at work. See, e.g., §§651,
653, 657. And no provision of the Act addresses public health more generally, which falls outside of OSHA's sphere of expertise.…
That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of
an employee's job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the
COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA's indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an "occupational safety or health standard." 29 U. S. C. §655(b)….
I think the Court is right to focus here on the "major questions" doctrine, which requires Congress to "speak clearly when authorizing an agency to exercise powers of vast economic and political significance." It is also right to conclude that Congress did not clearly authorize OSHA to use its Emergency Temporary Standard authority to impose such a sweeping vaccination mandate. Had the Court ruled the other way here, it would have set a dangerous precedent, giving OSHA sweeping control of virtually all workplace conditions. But I'm not convinced by the Court's distinction between dangers specific to the workplace, and those that also exist elsewhere. I think the three dissenting justices are right to point out that this distinction is not actually drawn by the OSHA statute.
Rather, the reason why the "indiscriminate" nature of the OSHA mandate dooms the mandate is that many of the workers covered don't actually face a "grave danger," as required by the ETS statute. This is especially true, given that they could easily mitigate any danger simply by getting vaccinated voluntarily (the government concedes that OSHA found a "grave danger" to exist only for unvaccinated workers).
In a concurring opinion joined by two other justices (Thomas and Alito), Justice Neil Gorsuch argues that the OSHA mandate also violates the nondelegation doctrine. I agree with much of his argument.
The joint dissent by the three liberal justices makes some good points. But, ultimately, I don't think it can get around the lack of clear delegation to use emergency authority for such a sweeping measure.
I may have more to say about the opinions in this case in future posts.
In Biden v. Missouri, a 5-4 Court upheld the the CMS health-care worker vaccine mandate. Chief Justice Roberts and Brett Kavanaugh joined the three liberals in the majority. Here is the key passage in the majority opinion, which I largely agree with:
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." 42 U.S. C. §1395x(e)(9).* 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. 86 Fed. Reg. 61557–61558. He accordingly concluded that a vaccine mandate is "necessary to promote and protect patient health and safety" in the face of the ongoing pandemic.…
The rule thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the "very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19."Florida v. Department of Health and Human Servs., 19 F. 4th 1271, 1288 (CA11 2021).
The States and JUSTICE THOMAS [in his dissent] offer a narrower view of the various authorities at issue, contending that the seemingly broad language cited above authorizes the Secretary to impose no more than a list of bureaucratic rules regarding the technical administration of Medicare and Medicaid.
But the longstanding practice of Health and Human Services in implementing the relevant statutory authorities tells a different story. As noted above, healthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare, not
simply sound accounting.
When asked at oral argument whether the Secretary could, using the very same statutory authorities at issue here, require hospital employees to wear gloves, sterilize instruments, wash their hands in a certain way and at certain intervals, and the like, Missouri answered yes… 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. In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he does.…
Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella... As the Secretary explained, these preexisting state requirements are a major reason the agency has not previously adopted vaccine mandates as a condition of participation.
There may be cases in which there is ambiguity about whether a given regulation really advances the "health and safety" of patients. In such a case, the condition could not be imposed on state government-controlled facilities, because it would violate the longstanding requirement - embedded in the Supreme Court's Spending Clause jurisprudence - that such conditions must be clearly stated. But vaccination to limit the spread of a deadly disease to which many hospital and nursing home residents are unusually vulnerable is not a borderline case. It's an easy one. If anything advances the "health and safety" of patients, this surely does.
If there is anything surprising about the CMS ruling, it's that it was a 5-4 decision. I would have expected a larger majority. Like the liberal dissenters in the OSHA case, Thomas' dissent here makes some reasonable points. But, ultimately, he cannot get around the fact that the power to protect the "health and safety" of Medicare and Medicaid facility patients goes beyond merely administrative and clerical regulations. And if it does, vaccinating health care workers becomes an easy case.
Ultimately, the difference between the two case outcomes reflects the far less sweeping nature of the CMS regulation, and the different wording of the two statutes. I discussed the latter in a bit more detail in my NBC article.