SCOTUS Blocks Federal Vaccine Mandate
The highest court in the land issued a split decision on President Biden's COVID policy.
WaPo (“Supreme Court blocks Biden’s workplace vaccine rules, allows requirement for health-care workers“):
The Supreme Court on Thursday stopped the Biden administration’s vaccination-or-testing requirement for the nation’s largest employers, a dramatic blow to the federal government’s most far-reaching initiative to combat the coronavirus and boost the country’s lagging vaccination rate.
But the court allowed a different and smaller policy to go forward, requiring vaccinations for most health-care workers at the facilities that receive Medicaid and Medicare funds.
The court has been supportive of state requirements targeting the pandemic but skeptical of broad federal responses. All six of the court’s conservatives said Congress had not given the Occupational Safety and Health Administration power to impose such a sweeping requirement in workplaces across the nation.
But Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joined the court’s three liberals to say the secretary of health and human services did have the ability to require vaccination of health-care workers at facilities receiving federal funds.
The court’s orders, issued after an emergency hearing Friday, might seem like a split decision. But the OSHA vaccine-or-test requirement would have applied to 84 million people. The requirement for health-care workers covers about 10 million.
In its unsigned order blocking the OSHA workplace rules, the court wrote that although the risks associated with the coronavirus occur 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,” the order says. “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. Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”
The opinion said OSHA might have more limited authority. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible,” it said, mentioning those who work in “particularly crowded or cramped environments.”
Slate‘s Mark Joseph Stern, not surprisingly, is outraged (“The Supreme Court Had No Legal Reason to Block Biden’s Workplace Vaccine Rules“):
SCOTUS’s unsigned majority opinion rests on several dubious claims. The court declared that “we expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” So even though COVID is undoubtedly a “grave danger” and a “new hazard” to workers, this broad language is not enough, because it does not “plainly authorize” the mandate. Why not? The majority invented a distinction between hazards that occur solely in the workplace and hazards that occur in and out of the workplace. Because the pandemic exists outside the workplace, it is not the kind of “grave danger” envisioned by the statute, and “falls outside OSHA’s sphere of expertise.” The majority also raised the “anti-novelty principle,” stating: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind.”
Notice something unusual about this analysis? The dissenters certainly did: It is utterly untethered to the plain text of the law, which obviously encompasses OSHA’s rule. In a rare joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan shredded this anti-textual approach to statutory interpretation. By dismantling OSHA’s authority over hazards found in and out of the workplace, they wrote, the majority imposed “a limit found no place in the governing statute.” This limit is not even supported by history: The agency has long regulated risks “beyond the workplace walls,” including fires, excessive noise, unsafe drinking water, and faulty electrical installations. And if the vaccinate-or-test policy is unprecedented, that is because it is in response to an unprecedented event: the deadliest pandemic in American history.
If that weren’t enough, OSHA put forth uncontested evidence that COVID-19 “poses special risks in most workplaces, across the country and across industries.” The virus “spreads more widely in workplaces than in other venues because more people spend more time together there,” the dissenters noted. OSHA “backed up its conclusions with hundreds of reports of workplace COVID-19 outbreaks.” And it issued a rule designed to protect workers from these kinds of superspreader events. By “overturning that action,” the dissenters wrote, the majority “substitutes judicial diktat for reasoned policymaking.”
NY Intelligencer‘s Irin Carmon is even more hyperbolic in “The Supreme Court Goes Anti-Vaxx.”
From a building closed to the public except for essential personnel, where lawyers are allowed to argue only if they have a negative PCR test, six vaccinated, boosted conservative justices of the Supreme Court blocked the Biden administration’s vaccine-or-test requirement for workplaces. There is some internal dissension on the Court’s COVID-related precautions: Recent arguments have featured one justice with a high-risk condition (Justice Sonia Sotomayor, diabetes) calling in rather than sit next to a justice who refuses to mask (Justice Neil Gorsuch, chronic jerk). Still, from a workplace transformed, an unsigned majority opinion declared that COVID-19 is “not an occupational hazard” for most of the covered businesses, that it is “a threat that is untethered, in any causal sense, from the workplace.” The three Democratic appointees dissented.
SCOTUSBlog’s Amy Howe (“Fractured court blocks vaccine-or-test requirement for large workplaces but green-lights vaccine mandate for health care workers“) is more measured:
OSHA issued the vaccine-or-test mandate at the center of National Federation of Independent Business v. Department of Labor in November. It required all employers with 100 or more employees – roughly two-thirds of the private sector – to compel those employees to either be fully vaccinated against COVID-19 or to be tested weekly and wear masks at work. The government expected the mandate to cover 84 million workers.
Businesses, states, and nonprofits went to court to challenge the mandate, and on Thursday the Supreme Court granted their request to put it on hold. Describing the mandate as a “significant encroachment into the lives — and health — of a vast number of employees,” the court emphasized that Congress must speak clearly if it intends to give a federal agency the authority to “exercise powers of vast economic and political significance.”
In this case, the court continued, Congress did not. It gave the Department of Labor the power to establish safety standards for the workplace, rather than “broad public health measures.” Although COVID-19 “is a risk that occurs in many workplaces,” the court acknowledged, it isn’t a risk that workers encounter simply by virtue of being at work – COVID-19 spreads virtually anywhere that people gather. “Permitting OSHA to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the court concluded. And indeed, the court noted, the fact that OSHA has never adopted a similar regulation is a “telling indication” that the vaccine-or-test mandate exceeds the agency’s power.
While I dislike the policy outcome here, the rulings strike me as reasonable enough. While I have written many times arguing for vaccine mandates—and not only urged President Biden to issue one but castigated him for being so slow to do so—there was always a huge question whether he had the legal authority to enforce it. While it’s been clear for at least a century that state governors could do so under their police power, the Federal government has never been vested with that much control.
It’s noteworthy that this is not a decision based on Constitutional law but rather one of statutory interpretation. Congress could, if it were so disposed, pass legislation directly given the President power to issue such mandates, modify the OSHA authority to broaden its authority here, or give that power to the Surgeon General or some other medical authority in the Executive Branch. Presumably, that would then be litigated to determine whether this overstepped the bounds of the Constitution.
Of course, the reality is that Congress is not so disposed. That leaves Biden with the bully pulpit which, alas, is not as powerful as when the country is united behind a popular President.
It’s an occupational hazard if you come into contact with infected people in the workplace because it’s happening at your job due to you being on the job. By virtue of coming into contact with your coworker carrying the highly infectious disease and no protection, you will be exposed. One can theoretically not be exposed outside of work (shop online, Grubhub for food, live alone) so they can be reasonably sure that work is the cause of their infection. Claiming infection is “untethered” from work is madness as work is place many still have to physically go to and *will* get sick from as you magically don’t stop being infectious once you cross your employers threshold.
Also, this is now going to affect ANY vaccine requirements from OSHA or government as well. Thanks SC, we were all looking forward to the old classics roaring back due to sheer stupidity.
The GOP is literally willing to destroy lives and inflict economic disaster for political points. COVID is going to wreck havoc on governmental budgets and corporate America for years. The simple, common sense solution already within the scope and powers of an existing agency gets scuttled because OMGOVERREACH hysteria.
As much as haters don’t like Don’t Look Up for it’s bluntness, it’s freaking true. The GOP would have you ignore the comet and not save humanity because of “Big Government” nonsense.
@KM: I honestly think it’s a stretch that OSHA can regulate ordinary behavior that happens to implicate the workplace. Regardless, there’s nothing preventing business owners, union bosses, and others from mandating vaccination as a condition of employment.
Shorter SCOTUS: “OSHA can’t mandate hard hats because stuff falls on people’s heads in other places, too.”
Of course it does. But that’s on you, not because the rulings make any sense.
@James Joyner: You may think it is a “stretch” James but that is because you are ignorant of OSHA’s breadth and rulemaking authority. It “feels” right to you so you are opining without understanding or knowing.
The dissent is accurate. As an example, OSHA regulates what kind of clothing can be worn for certain jobs because that may increase the threat a worker in that clothing faces. Those threats are frequently faced by those workers outside the work environment as well.
To get more specific, for outdoor work in the summer, it mandates sunglasses.
Under the Majority’s reasoning, since everyone deals with sunlight, OSHA wouldn’t have the authority to issue those regulations.
By this ruling’s “logic”, OSHA can’t require guardrails in workplaces either because gravity exists everywhere.
If employers would do the right thing for employee safety, we wouldn’t need OSHA in the first place.
It’s not “ordinary behavior” to get infected with disease, you know. That’s like saying it’s “ordinary behavior” to get pregnant from sex. It takes a specific action with specific people at specific time for that to happen, not just “had sex” in general. You get pregnant by having sex with Joe at during your fertile period of the month without protection, not because you got to second base with Bob or blew a kiss at Sarah. We as a society need to get over this medieval attitude that illness just “happens” and there’s nothing you can do about it. You can absolutely trace back infection or we wouldn’t be able to do contract tracing at all. You get infected with an airborne virus by being exposed to it from someone who’s breathed it out – meaning that masking and vaccination in the workplace as a requirement during a pandemic are basic, cost-effective and fairly efficient methods of breaking the chain of infection.
If I track TB or the zombie virus into my workplace, that’s a workplace hazard created by not having simple controls to prevent it. If you get TB or bit by a zombie in the workplace, it’s the workplace’s fault for allowing it to happen by not having something in place to stop it. Bringing in outside conditions that cause problems inside is actually regulated; it’s OK to drink outside but not be drunk on the job even if drinking and drunkenness is “ordinary behavior”.
What you were before still continues once you punch that clock, @James and that included dangerous conditions you bring with you. That’s well within OSHA’s wheelhouse and it’s only the instinct conservative “government doesn’t tell me what to do!!!” that insist on rebuttal to a clear common sense application of existing powers.
Also, this ruling isn’t making conservatives happy as it carved out exceptions for medical workers and some others. Meaning OSHA *does* have the authority to require it but only when the conservatives on the SC think it’s appropriate…. or are smart enough to realize when it might cause the collapse of a major pillar of society.
Tucker in particular singled out Kavanaugh with the dreaded lib slur for daring to note medical personnel getting sick on the job is workplace hazard. I mean, how dare he state truth when he’s supposed to be pushing the “ordinary behavior” nonsense – it’s completely ordinary for nurses to catch diseases at work from patients and die, Kav! Why bring in OSHA to do their job for the doctors when clearly it’s not their job to protect a grocery worker or factory workers? It’s either a hazard to get infected at work or not and it’s not since the GOP says so!
The difference, though, is that OSHA can’t mandate that construction workers wear hardhats, that outdoor workers wear sunglasses, and that guardrails be installed outside the workplace. This isn’t a regulation of workplace conduct but a mandate to be vaccinated, period, because you also spend time at a workplace. That strikes me as inherently different.
That’s entirely possible! I’ve been aware of OSHA for decades but claim no especial expertise as I don’t study workplace safety.
Sure. Again, I think workplace mandates are a good idea and was recommending them before Biden/OSHA issued this mandate. I have no doubt that OSHA could mandate that employers do rapid COVID tests as a condition of entering the workplace. It just strikes me as plausible that current law doesn’t given them the power to mandate this vaccine—which, again, was an open legal question months before these suits were brought.
But it’s allowed to mandate others? This is where COVID faffing leads us @James; by saying “this vaccine’s not ok to be mandated”, now ALL of them in in legal question. The SC just did a lot of damage here in the name of faking small gov cred.
OSHA is allowed to mandate vaccines or Kav wouldn’t have allowed the medical worker exception. Please explain how legally the government has the power to mandate healthcare workers be vaxxed to get Medicaid money but not have the power to mandate vaccines for worker safety. The SC is trying to split the baby and it’s not working. If it’s a hazard to be exposed in one work environment, it’s a hazard in another even if it’s less common. If you can regulate one to stop spread and protect workers, you can do it in the other unless you’re actively tryin to come up with reasons why not. It’s essentially separate but equal as a concept for infection; different rules and protections for different groups that somehow is fine as long as the outcome pleases the people authoring the “logic”.
If I were Xi or Putin, or even Kim, I’d be pressing hard to weaponize measles.
Near the end of 2020, when it looked like vaccines might put an end to the trump pandemic in 2021, I read about a war game involving weaponized smallpox deployed in a terrorist attack. There were two problems found, one was producing vaccines fast enough, the other was distributing them quickly.
Add a third and a fourth: a sizable percentage of the population won’t take it, and the government can’t mandate it.
I know Putin has access to variola, the smallpox virus. Xi might, too. I don’t know about Kim.
“You may think it is a “stretch” James but that is because you are ignorant of OSHA’s breadth and rulemaking authority.”
The problem is that a Supreme Court with a majority of Federalist Society members does not accept the last 80+ years of jurisprudence on administrative agencies’ rulemaking authority. This is just the opening step in turning back the clock.
The mandate for medical workers was issued by CMS as a requirement to continue receiving Medicare and Medicaid money. Completely different rule and justification — patient protection — from the OSHA mandate.
Alas, as a health care compliance officer, I don’t have that luxury.
You may notice a theme here as folks who do have expertise can point out that the conservative majority in SCOTUS is, once again, full of shit in order to get their preferred policy outcome.
Again, and apologies if this comes across as harsh, I don’t care what it “strikes” you as. I care about what is consistent and reality-based – even if your gut is telling you the wrong thing because you haven’t taken the time to understand the context or thought through the ramifications.
OSHA mandates vaccinations already.. It mandates them because they protect against workplace exposure *and* transmission. They are mandatory even if you could contract the disease elsewhere as well.
But there is zero doubt that people catching (and spreading) Covid-19 at the workplace is a workplace-based hazard.
Further, the court also blocked testing requirements at the workplace. (which would have been a workplace-based issue: infected people should not threaten other workers.
There is no way in hell someone with TB, measles, or some other communicable disease would be allowed on a worksite. And yet, the Court has now mandated that workers are required to be exposed to infection.
This is about the ideology of the moment.
Put another way: I could almost accept the Court’s logic if it would allow testing to at least keep infectious workers from the workplace, but it doesn’t even do that.
One wonders if they would be so disposed without the filibuster.
So – if someone invented a magic vaccine that only worked against transmission in a workplace, it would, per Roberts, be OK for OSHA to mandate it. It’s a shame the vaccines we have are so much better than that.
Or, if Congress in the 70s had anticipated the NOVEL coronavirus. Also, too. There were no laser cutting machines in the 70s, but OSHA is allowed to mandate guards on them. Although I hesitate to mention that for fear it might give old Balls and Strikes ideas.
What @Moosebreath: said. What’s really at issue is the Federalist’s Koch fueled opposition to regulation. If their anti-delegation views require a few tens of thousands of workers die, it’s a small price to pay for FREEDUMB!!!
The difference, though, is that OSHA can’t mandate that construction workers wear hardhats, that outdoor workers wear sunglasses, and that guardrails be installed outside the workplace. This isn’t a regulation of workplace conduct but a mandate to be vaccinated, period, because you also spend time at a workplace. That strikes me as inherently different.
They mandate because injuries go with the worker outside the workplace. It’s just an absurd reading of workplace safety to think otherwise. Like OSHA only wants to stop accidents because it’s bad for productivity.
Well, at least not until the case gets argued before the Supreme Court. At which point the justices will make another GQP pro-Covid ruling.
@James Joyner: “I honestly think it’s a stretch that OSHA can regulate ordinary behavior that happens to implicate the workplace. Regardless, there’s nothing preventing business owners, union bosses, and others from mandating vaccination as a condition of employment.”
Note that OSHA has (for now) * workplace* authority over many commonplace things which occur everywhere: fire, water, temperature, lighting, exits, etc.
@Steven L. Taylor:
I haven’t read the rationale for this but it’s a red flag, I agree.
I’m not sure the analogy is true. We don’t test for these things, either, do we?
It’s possible, although the split ruling seems to suggest otherwise. I think it’s more likely that it’s about a longstanding ideology that’s now taken a majority in the Court, namely a revival of pre-New Deal concerns about the Constitutionality of the regulatory state (“non-delegability”).
But, as noted upthread, only when they’re directly happening at the workplace. And those regulations have previously followed the APA.
Umm yes we do test for TB, or at least for some jobs. I distinctly remember being tested as a condition of employee and after potential exposure. I’m betting others on this thread have been tested too.
The difference is TB is under control. You don’t need to be tested constantly because the chances of you being exposed are practically nil. When you are, you get locked down so it doesn’t spread. It’s under control because the government doesn’t play around with TB. If COVID were under control, we wouldn’t be having this conversation either. We let COVID spiral out of control due to negligence, malice and frankly legalism and whataboutism. We wouldn’t need to have a national vax mandate if people had taken this seriously from the beginning and have been been fighting or splitting hairs every step of the way.
We’re at this point precisely because folks are hemming and hawing about pointless legalities and letting the house burn down. To circle back to the Don’t Look Up reference, it’s not the folks doing the eponymous chant that’s truly dangerous, it’s the folks arguing the government doesn’t have the right or authority to take action to stop the comet.
This decisions will rank up there with Kelo, Citizens United, and Dred Scott.
Except for laws and governor decrees in 20 states with Republican governors.
But is it mandated by OSHA? All I can find is that several vaccines are required to be available to employees who are in jobs with potential exposure. The only time I’ve had to get tested was when I applied to work in a school. I can’t remember if I had to get the vaccination or not.
I’ve worked a lot of jobs in my life, and I’ve never had to provide any proof of any vaccination, or (outside of the teaching cert, and China) get tested for any medical conditions.
The question isn’t whether vaccines are the right move (they are) or whether companies can require them (they can), but whether OSHA has the authority to require them, absent a specific legislative directive.
Except for the fact that it’s a testing mandate as much as a vaccine mandate.
Had the Supreme Court said that the testing mandate was onerous and designed to coerce behavior outside of work (vaccination), and that that exceeded OSHA’s mandate, I would dislike the outcome but think it was at least plausibly decided (assuming no OSHA rules exist for drug tests for people around heavy equipment).
They could have tossed in a reference to breakthrough infections, and said that the emergency order was not keeping up with the emergency and that this shifts the balance when weighing the emergency order against individual liberty. I would have been bad-ish science, and legislating from the bench, but it wouldn’t have read as partisan hackery.
@Mu Yixiao: depending on the job, yes.
It has for a while now but the SC want to have their cake and eat it too. You are not allowed to work while infectious with Hep B or TB as it’s a workplace hazard. I’m sure Kav and the others don’t want the chefs to have parasites when making lunch for them so they are aware OSHA having regs about this sort of thing in rather important and not a free-market decision.
I’m running with my theme and proposing a Don’t Look Up scenario: planet killer comet is coming. What agency has the inherent authority to act? NASA (outer space), Space Force / military (enemy action/ threat to nation), FEMA (disaster)? Do they need specific legislative directive and what happens when politics inevitable screws it up? What happens if someone sues NASA to stop them from saving the world because they don’t have the “constitutional authority” to do so…. and the SC agrees?
I thought that was a state board of health thing, rather than an OSHA thing, to be honest, and often enforced by county/city. When a restaurant has an outbreak of Hepititis, it tends to be closed by the local Board of Health on grounds of not infecting food products rather than a federal agency for endangering other employees.
I guess now that I think about it, I favor a left-wing dictatorship that will actually do something about global warming, over a democracy that will ignore it.
(and both those options are preferable to a right wing dictatorship that will encourage it… I mean, I still got 30 years or so on this earth, let’s hold it together at least that long)
@Gustopher: Cool! Find me a left-wing dictatorship that knows what to do about global warming and can carry it out globally and we’ll talk.
I would say that the analogy is dead-on accurate. The reason we don’t test for those things is because there are obvious, outward signs of disease. If someone shows up to work with 101 fever and rash, we send them home and tell them to go to the doctor. Since we know Covid is present and can present as asymptomatic, we need to test, but it is functionally the same as seeing the rash, witnessing the cough, or whatever else would normally warn.
This is the main problem with all of this: asymptomatic transmission. Or, with Omicron, in particular, something that looks like a cold or sinus infection actually being a Covid infection.
I think the rulings were correctly decided, but I’m not in total agreement with the reasoning.
There are a few factors that I think other commenters ought to keep in mind:
– This was an emergency standard issued by OSHA which bypasses all the normal rulemaking procedures. Courts have always applied greater scrutiny to such instances than they do for regular rulemaking for reasons that should be obvious.
– Secondly, this was a poorly written rule in large part because it was a clear attempt to use this obscure OSHA rule to shoehorn a vaccine mandate. That drove it to be very broad and not actually tailored to real workplace conditions. And the administration was pretty transparent that this was the only possible existing authority they could find to do a vaccine mandate without having to go to Congress first.
As Jonathan Adler notes:
And particularly with Delta and Omicron, vaccination does not prevent spreading the disease – so it’s not exactly clear how this rule would actually result in workplace safety.
A rule that instead stated that workplaces must test employees and that infected employees should then either be banned from the workplace until they were no longer infected, or be assigned duties where they are isolated, or that infected persons must wear N95 masks, or any number of other alternatives. But the rule didn’t do any of those things because the goal wasn’t primarily about workplace safety, it was intended to promote vaccination.
And if you look at other OSHA vaccination requirements – they are specific to circumstances, conditions, and jobs. There is no universal mandate that every employer with more than 100 employees must be vaccinated for TB or Hep B. Instead, requirements are tailored to actual risks.
And so I agree with Ilya Somin as well:
There is also a more general question about how much power the Executive Branch and administrative state (which has become a de fact shadow legislature) should have. What is the limiting principle to what OSHA can and cannot mandate without further Congressional authorization? If one believes that OSHA has the authority to enforce this sweeping emergency standard, then at what point does OSHA’s authority stop?
Personally, I think the Executive Branch and the shadow-legislation that constitutes agency rulemaking is already too powerful. I’m particularly skeptical when agencies assert they can mandate a rule on an emergency basis, which skips the normal review process, for a sweeping rule such as this.
And I’d just point out that Congress has never even discussed much less drafted and voted on a mandate. I find the notion and argument that Congress’ lack of action somehow allows the Executive Branch to do what it wants in the name of expediency to be weak and one that contributes to the growing power imbalance between the Executive and Congress.
@James Joyner: “I have no doubt that OSHA could mandate that employers do rapid COVID tests as a condition of entering the workplace. It just strikes me as plausible that current law doesn’t given them the power to mandate this vaccine—which, again, was an open legal question months before these suits were brought.”
James, the OSHA mandate that SCOTUS just stayed explicitly offers workplaces the choice between a testing or a vaxxing regime.
Still think the decision made sense?
@TJ: I see this came up in a later comment
Yes, it does.
1) While both variants have caused breakthrough infections, not every vaccinated person exposed has gotten a breakthrough infection. If you don’t get an infection, you can’t spread the virus.
2) People with breakthrough infections recover faster and have fewer and milder symptoms. This shortens the time they can spread the trump disease, as well as the amount of virus they put out. Viral loads aside, if you cough constantly, you spread more virus than if you cough occasionally.
3) early indications suggest Omicron does not cause as high a viral load in breakthrough infections as Delta did.
So, vaccinated people, even with only the two original doses, don’t spread the virus as much as unvaccinated morons* do.
*This appellation applies only to those who choose not to get vaccinated, not to those who can’t for valid medical reasons. The latter, I assume, also take more precautions.
@Gustopher: And even without the local MAGAt governor banning mandates, it’s difficult to implement a mandate for your business or store without backup. It’s one thing for someone to stand at the door and say you can’t come in without proof of vaccination because my boss said so. It’s quite another thing to be able to say because the feds said so and I’ll call the cops if you don’t. And if you don’t like it, tough, because my competitor down the street is also compelled to enforce this.
The plain meaning of the law allows OSHA to issue the regulation, in fact I would argue that OSHA is obligated to issue such regulation. If Congress disagrees, it can simply change the law.
@James Joyner: “The difference, though, is that OSHA can’t mandate that construction workers wear hardhats, that outdoor workers wear sunglasses, and that guardrails be installed outside the workplace. This isn’t a regulation of workplace conduct but a mandate to be vaccinated, period, because you also spend time at a workplace”
No, the mandate says that if you are going to be on a work site, you have to be vaccinated. If you can figure out how to be vaccinated at work and not at home, that would be none of OSHA’s business.
It just boils down to Covid to being politicized, which makes it exceptional and different than trying to prevent head trauma. The Supreme Court fished and produced some hack logic which isn’t very convincing.
What’s grimly hilarious is that libertarians have spent decades they’re not against all regulations and they don’t want to turn back the clock to some frontier/Ayn Rand shitshow. But what do they want is good, easily-understandable regulations. And yet OSHA mandating vaccination for workplaces is like the simplest regulation and ideologically it’s just too much.
@James Joyner: ” I think it’s more likely that it’s about a longstanding ideology that’s now taken a majority in the Court, namely a revival of pre-New Deal concerns about the Constitutionality of the regulatory state (“non-delegability”).”
I have to ask, James, since you seem concerned about overreach by an arm of the government, which do you see as a more important overreach: the agency dedicated to workplace safety requiring vaccines, or six individuals on the Supreme Court — three of whom were appointed by a twice-impeached, one-term president who never won the popular vote — unilaterally deciding that the way the government has been run for close to a century just doesn’t fit in with their ideology and thus must be changed by fiat, with no participation from congress or the executive?
Because you sure seem to take the latter as an insignificant trifle to be tossed away, rather than the radical reactionary restructuring of the entire country it’s mean to be.
@Modulo Myself: ” And yet OSHA mandating vaccination for workplaces is like the simplest regulation and ideologically it’s just too much.”
Yes, it was kind of Andy to post the current sociopathic ravings from Reason to show us why the root cause of the Libertarian philosophy is to turn every working society into Somalia.
@Steven L. Taylor: Again, we agree that COVID vaccination and testing would be a good idea. The question was whether OSHA has the emergency authority to mandate them universally without going through normal APA processes. I agree with the majority that COVID isn’t a workplace-specific threat but is basically trying to cure a national issue through the back door (“to regulate the hazards of daily life — simply because most Americans have jobs and face those same risks while on the clock — would significantly expand OSHA’s regulatory authority without clear congressional authorization.”).
And the Court seemed to think it was simply overbroad, rather than targeted:
While, again, I absolutely agree that this is a good idea, this is very much like what we saw under Trump: hastily-established policies being overturned for lack of authority and/or APA compliance.
@Andy: OK. So the Major Questions doctirne says the Executive can’t act because it’s up to Congress. And we all know Congress won’t act because of the filibuster and Republicans. This is what Hacker and Pierson describe as “drift”. Nothing can be done to change the status quo, and people who are doing well under the status quo will act to keep it that way. No way to run a railroad.
@Kathy: Thank you. I was looking for a cite on the question. It’s implied many places that vaccination slows the spread of Omicron but I wasn’t finding a clear cut statement. Partly, I think, because science reporting is so bad and partly because, duh, of course it does. Andy, you got a cite to the contrary?
I’ve spent decades arguing that the Supreme Court is too powerful, serving as what amounts to a sitting Constitutional convention. It’s decidedly less than ideal.
I happen to agree with the notion that the administrative state violates the letter and spirit of the Constitution. But I really don’t see any way around it. Even if Congress weren’t dysfunctional, it simply lacks the expertise or bandwidth to legislate down to the level of specificity the Supremes seem to be asking for here.
Beyond the practicalities, stare decisis is a bedrock principle of a common law system. Reversing roughly 90 years of precedent on a core issue of how we govern ourselves is highly problematic.
On the other hand, the solution isn’t unchecked Executive power subject to the whims of whoever happens to sit in the Oval Office.
I don’t know that any of this is fixable. The Constitution was designed to be really, really hard to amend and there’s no supermajority for fixing any of this.
Yes, this exactly.
As you noted later in your comment, it does NOT prevent spreading the disease.
It’s true that a vaccinated person is less likely to spread the disease, depending on which vaccinations they have and when they got them. But reducing spread is not the same thing as preventing spread and preventing spread is specifically what I mentioned in my original comment.
And, for throat clearing purposes, let me stress once again that I support vaccination and think most everyone should get vaccinated.
I agree with the majority that COVID isn’t a workplace-specific threat but is basically trying to cure a national issue through the back door.
The matter is pretty clear. A number of employers have issued mandates for their employees. Are they not responding to workplace-specific threats? Of course they are. So Covid is a workplace specific threat, and can be treated as such, and there’s no reason why OHSA can’t regulate workplaces. And no one actually believes otherwise. The ‘back door’ is being used by the Supreme Court by appealing to the mandate as exceptional rather than normal.
So if a vaccination-or-testing policy means that 10 out of 100 people get sick instead of 50 out 100, the spread of disease is not being prevented?
That’s 40 people that didn’t get sick. How is that not disease prevention?
This like saying that “reducing” and “preventing” are different words, and thinking you have actually made a point.
I don’t get the. The Constitution’s opening lines of gives the We The People broad power to “establish justice, insure domestic tranquility, provide for the common defense, and promote the general welfare.” As the United States has grown bigger and more populous, We The People’s elected representatives have built out the administrative state to fulfill those mandates, under the authority of the Chief Executive and with oversight from the Congress.
Conservatives are not being conservative when they oppose “the administrative state.” The OHSA didn’t appear out of the blue: it is created by acts of Congress to ensure a “safe and healthy” workplace, under the Chief Executive’s authority and with congressional oversight.
A workplace vaccine or test mandate nearly two years into a persistent pandemic does not violate any of the above mandates, from the OHSA’s legislatively-empowered mission on up through the Constitution’s preamble.
This is an activist ruling from this court. This split decision is being roughly criticized from all sides because the reasoning doesn’t hold. It again shows the court’s conservatives are phonies: outcome-focused partisans who personal, ideological desires above their stated fealty to textualism, restraint, and innocently calling balls and strikes.
Weirdly, I agree with this outcome. The court has inadvertently helped Biden, because Americans are reflexively averse to these kinds of top-down directives. Coercion would’ve been better optics — promising federal money or one-time tax rebates to corporations that implemented a robust vaccine-or-test regime.
So I don’t agree with the media’s predictably lame “Another loss for Biden!” hot takes, especially with Omicron set to start its decline a week or two. Biden has dodged at bullet. The ruling is yet another mark against this Apartheid Court’s credibility.
At the time the rule was written, pre-Omicron, the number of breakthrough infections was small enough that it really was preventing spread. I think that providing a plague-free workplace likely falls under the clear text of OSHA’s mandate.
With the infectiousness of Omicron and the number of breakthrough infections (the vast majority of which are thankfully relatively minor, but which can still spread), the disease has moved faster than the government, and OSHA’s rules. The exception from the testing requirement for vaccinated individuals no longer makes sense.
And, if the ruling had focused on that, I would think it was likely correctly decided. Part of the higher standard for emergency orders should be “is this likely to work?”
Short version: I think you are closer to right than Kathy, but still wrong 😉
Aside: I think that providing a liability shield to employers who follow CDC/OSHA guidelines for workplace safety during the pandemic might be a better approach. It also provides an easy defense for “the best advice turned out to be insufficient and now our staff is sick and dying and suing us”
My impression has been the founders expected the Constitution to be regularly amended. But like many things, it didn’t work out as hoped.
Reducing spread is the same as preventing spread. The keyword is spread. Spread doesn’t happen in a vacuum, it’s exponential. That’s why it’s called spread.
If my house is on fire, and I reduce the size of that fire, I am preventing it from spreading to other buildings. Where otherwise, unchecked, it spreads to new buildings, and so on.
Cities, counties, states, and countries that are more vaccinated are, in general, seeing fewer COVID cases and deaths per capita. The COVID outcome gap between Trump counties and Biden counties grew clear and stark in 2021, a direct result of attitudes towards vaxxing and masking. By reducing the likelihood that they will pass on the virus to someone else (who could then pass the virus to even more folks and on and on), yes the vaccinated are preventing COVID.
Well, I’m sure some poor vaccinated but immunocompromised person who dies of Omicron they contracted at work, will find great consolation in the fact that all nits were well and truly picked.
In my view, this reasoning only works if the workplace wasn’t the central determinant of whether one can feed, shelter, and clothe [insert gender-free term that isn’t themself here.]
But that’s not the world in which we live. Acquiring a certain amount of money is the central activity in our lives to the point that it’s either that or go without life’s requirements. The workplace isn’t implicated in anything; it is the thing.
It may be a step away from directly undermining governance by consent, but this moves decision-making from a (nominally) democratic process to a bunch of wholly non-democratic ones. But this is the M.O. of the post-1980 Republican party–if the government can’t effectively reduce liberty to engage in activities they don’t like, have businesses regulate behavior even if it occurs outside working hours. (see: workplace drug-screening)
Reducing and preventing are, in fact, different words.
Preventing: “keep (something) from happening or arising.” or “make (someone or something) unable to do something”
Reducing: “To bring down, as in extent, amount, or degree; diminish.” or “bring someone or something to (a lower or weaker state, condition, or role)”
Covid is unlike most other vaccinations which not only prevent you from getting the disease in question, but also prevent you from spreading it to others and don’t require boosters on monthly timescales to maintain protection.
But I don’t see how this debate about semantics negates my argument or points regarding the OSHA mandate.
Even in that edge case, the OSHA mandate would not have prevented your scenario, only reduced the odds by some unknown amount. If a vaccinated person is truly at risk of death from Omicron due to an immunocompromised state, then they probably shouldn’t be around anyone.
You’re picking the hell out of those nits.
Yes, I think one of the problems is that Covid is moving too fast.
And there are other regulatory limitations as well. In theory, for example, OSHA could mandate masks in the workplace. That would be something that is much less novel than the ETS vaccine mandate.
But they haven’t tried and only issued non-binding guidelines that mirror CDC recommendations. The likely reason is that OSHA’s existing rules state that requiring masks will trigger OSHA’s PPE regulations which would force every business to adopt those compliance requirements which are not trivial. And the ETS standard can’t be used to create a carve-out for those regulations. So OSHA instead just advises that masks are encouraged and voluntary because rolling back or amending the PPE compliance requirements to create a less stringent exception would have to go through the APA process, public review, etc. which typically take years.
Of course, Congress could bypass all that with legislation, but they have other priorities.
@Kathy: “Even in that edge case, the OSHA mandate would not have prevented your scenario, only reduced the odds by some unknown amount.”
I’m suddenly transported back to the glory days of the ACA debate, when right wingers would rapturously intone that health insurance isn’t insurance at all because you don’t buy auto insurance after you’ve crashed your car so so suck on that libs.
I wonder if you think this distinction between reduce and prevent will actually persuade a single human being, or you’re just having fun with nonsense knowing that you’re arguing in favor of a moral monstrosity.
You’re entitled to your opinion, but I’d just point out that I wasn’t the one who started arguing about word definitions, which is about as nitpicking as one can get.
Because rehashing who started saying what is not nit-picking?
I’m a recovering Trekkie. I know nit-picking.
Vaccines prevent the spread of COVID. Period. Full Stop. They don’t prevent all the spread, true. Nothing does, for no disease, ever.
Two years into this trumpy mess, and people are still looking for the one magic bullet that will solve all problems, and are unwilling to take any of the many preventive measures isntead, which will end this mess faster.
It just beggars belief.
When I was growing up, the phrase “ivory-tower intellectual” was routinely thrown at Democrats who knew nothing about the real world but kept proposing their theories as absolutes. As far as I can tell, it has completely flipped. In isolation and in theory, being skeptical of the ever expanding bureaucratic state is understandable and a defensible debate point. In practice, it only is capable of working at all if Congress is a functioning institution (and I’m not sure it would work well even then). But the truth is Congress no longer is functional. From campaign finance to civil rights to gerrymandering to the functioning of government itself, the Supreme Court is now just a debating society where scoring philosophical points is more important than anything else. Including reality. And they take no responsibility for the actual outcomes of their decisions.
Going further afield, I’m more convinced than ever that one of the main problems with the modern Supreme Court is the fact they are all lifetime lawyers/judges/legal analysts, trained to parse and argue every point. Some non-legal real world experience, whether military or scientific or ANYTHING outside of debating (and let’s face it, a courtroom is a debate with consequences) is badly needed. I have no problem with “balls and strikes” as a judicial philosophy at a trial court level. But by the time you get to the SC you don’t get easy calls. Nothing is down the center of the plate or over the batter’s head to the backstop. Pretending those borderline calls aren’t a matter of judgement, or that only liberal justices interpret the law, is farcical. And the dominant philosophy of this court.
Yes, you pretty much were. Quit digging.
Yes, I agree with the gist of your comment here – is that not clear? Covid vaccines don’t prevent all the spread. Those last three words are a super important qualifier, don’t you think?
The thing is, the efficacy of the Covid vaccines is fundamentally different from, for instance, the MMR vaccine which prevents (ie. totally stops) the diseases – not just symptoms- and prevents (ie. totally stops) transmission, and lasts for years if not decades. So when I use the term “prevent” that’s how I’m calibrating the use of that word, which I think is consistent with the actual definition.
That’s fine if you disagree, but then how would you differentiate the efficacy of the MMR vaccine from the Covid vaccine? What word would you use for MMR if not “prevent?”
Anyway, this is a fun thought exercise, but let’s cut to the chase: I’m telling you directly that when I used “preventing” in my first comment I meant it in the sense of the dictionary definition of actually stopping both the disease and transmission similar to MMR.
If you want to continue to go down the rabbit hole of “debate” regarding my word choice, then feel free to have the last word on that topic. If not, then I look forward to any criticisms you have of what I actually wrote and the actual points I’ve made, which I don’t think either of you have directly addressed.
For what it’s worth, I apparently had TB at some point in my life, and even though it was inactive and non-infectious when I reacted to the skin test, they still had me go through a year-long regimen of pills. Said pills would be delivered to me every Monday by a Public Health representative and a cop. I guess the threat was implied that should I not comply with the pill regimen on my own, they’d be willing to swing by every day and watch me take it.
They gave me a card I have to carry saying I test positive for TB, but I complied with the pill regimen, so I guess I’m good?! I haven’t had to take a TB test since then.
I don’t see much difference between a vaccine mandate and that implied threat that they’d force-feed me that pill in the interest of “public health”. If the Supreme Court is ok with TB protocols being enforced, what’s different about the vaccine mandate?
That’s nice right wing propaganda, but COVID does not require “monthly” boosters. Did you hear that on Tucker Carlson? Moreover, the comparison with “other vaccinations” is silly on its face: COVID is unlike other vaccinations because it is unlike other diseases. COVID is killing, spreading, and mutating with unprecedented rapidity right now. Other diseases for which we vaccinate do not, a difference that neither you nor the Supreme Court are able to grasp.
Of course, none of that changes the fact that COVID vaccines do both reduce and prevent COVID. Words can, in fact, have multiple meanings depending on context. And different words can, in fact, have similar meanings, especially in context.
The vaccinated are less likely to catch and spread COVID, hence why communities that are more vaccinated have less per capita COVID. Meaning COVID vaccinations are, in fact, stopping people from getting COVID.
There is nothing that requires OSHA to limit its activities to “workplace-specific threats”. Indeed I can’t even imagine what test could be devised to decide whether a risk of illness or injury was “workplace-specific”.
OSHA has a plain authority to issue temporary emergency standards. Such standards, by their very nature, can self-evidently not be developed by following the normal process of careful evaluation and consultation with affected parties.
The Republican judges, by inventing a “major questions doctrine”, have established a means by which they can invalidate any action by the executive government that has not been explicitly authorized by Congress. Since they decline to propose any means to distinguish “major” and “minor” questions in advance – indeed one admitted it was impossible to try – they’ve effectively asserted their authority over the whole federal government. EPA measures to reverse global warming? Sorry, that’s a major question. Congress will have to pass an appropriate bill. Bans on immigrants from Muslim countries? That’s OK, it’s a minor question.
The decision opens the way for a whole new era of judicial activism. Senate filibusters to stop legislation and six Republican judges to stop regulations! Conservatives will be delirious with joy that the US government has finally been rendered impotent.
I suspect that SCOTUS would have come down on the exact opposite side of the equation had the death rate of COVID been the same as that of Ebola.
Oh well. Guess we’ll have to learn about why vaccines are important all over again.
The MMR vaccine is 97% effective against measles, and 78% against mumps. The reasons measles has become a rare disease is that most children get vaccinated, leaving no reservoir for the virus.
it’s not life long protection. A booster is indicated for everyone later in life. But given the herd immunity overall, odds are good you’ll never get measles even without a booster.
Protection against SARS-CoV-2 infection differs in that the virus attacks faster than other pathogens, and thus depends more on circulating neutralizing antibodies than other diseases, which can wait for memory B cells to crank more. also due to its rapid mutation rate. There are many more variants other than Alpha, Delta, and Omicron, just not as infectious.
In any case, it all points to the need for more people to be vaccinated, not less. No matter how much you or the Court tries to nitpick.
I think here I did not phrase that properly – what I meant is “timescales measured in months.”
Yes, that I agree with. The fact that you and others can’t seem to acknowledge is that the Covid vaccines do help reduce the spread of Covid, but the vaccines currently don’t and can’t stop it.
And all along I’ve agreed that more people need to get vaccinated. But the point is that the Covid vaccines, unlike MMR and others, are not efficacious enough to stop the disease. Pointing that out is not “nitpicking.” It’s very unfortunate that the Covid vaccines are not as efficacious as we hoped and that require boosters once or twice a year to maximize the protection they do give (unlike MMR). That is the unfortunate reality and trying to deny that reality serves no useful purpose.