The US Supreme Court blocks Biden’s vaccine mandate.

As we are stepping into the third consecutive year since the onset of the COVID-19 pandemic, the humanity, like never before, is faced with ever-polarizing social-dilemmas. First, it was the lockdown and the mask mandate, then it was the social distancing rules and mandatory quarantine. Next it was the vaccine mandate, the latest addition to our woes. And going further, pandemic-driven crippling economic woes are looming large, bringing with it increasing social disparities.

Nearly one and half years into much hyped roll out of COVID vaccines, the world is still struggling to cope with the challenges posed by new variants. The science of vaccines, as Biden puts it, is the “only common sense life-saving instrument”. But as new fast-spreading variants are emerging, even vaccines seem to have got the better of trying to match the virus. With governments moving in for mandatory vaccination policies in an effort to bump up vaccination rates, it has become a do or die situation for citizens hesitant and unwilling to comply with mandates. People in most parts of the world are given an ultimatum by their governments, sometimes by their employers; to get the jab or get fired, or in the worst scenario get socially isolated, and even more face the risk of losing their hard-earned money. Some believe this seemingly overt global debauchery with vaccines has put the mankind under unprecedented pressure, anxiety and skepticism like never before. This is evident from the inoculation figures. There is a vaccine hesitancy already growing among a significant portion of the US population for either concerns over vaccine efficacy, political reasons or merely for plain obstinance. Despite US being one of the first countries to offer the vaccine, its percentage of the vaccinated hovers around approximately 64% at the end of January 2022. The remaining 36% are ones who refuse to take the jab.

With vaccine mandates and resultant gradual but steady deprivation of essential freedoms, economically down-trodden masses have already got the better of the post-pandemic world. Consequently people are being forced to bear the brunt of mounting trust issues over transparency in how pandemic and other matters of governance are handled. Canadian Freedom Convoy which began initially as a movement against vaccine mandates on cross-border truckers is now sweeping across the Europe, turning itself into massive antigovernmental protests. Yet, interestingly, the judiciary in most countries is unusually mum about the potential unconstitutionality of the restrictions and public health measures imposed by governments.

On 13rd January 2022, the US Supreme Court in its unsigned opinion in two applications National Federation of Independent Business, et al v Department of Labor, Occupational Safety and Health Administration et al and Ohio et al v Department of Labor, Occupational Safety and Health Administration et al, in a 6-3 majority decision blocked Biden administration’s latest effort to bring in a federal vaccination mandate( OSHA ETS), which if were green light would have impacted roughly more than 84 million Americans. The mandate enacted by the Secretary of Labor acting through the Occupational Safety and Health Administration, more particularly known as ‘’OSHA ETS’’ sought to implement an ‘emergency temporary standard’ ordering employers of large companies with at least 100 employees to require mandatory vaccination or in lieu of vaccination subject their employees to weekly-testing (plus mask-wearing) at latter’s own expense and time, however subject to religious, medical other limited exemptions. The covered businesses must “develop, implement, and enforce a mandatory COVID–19 vaccination policy and must verify the vaccination status of each of their employees and maintain proof of it. Accordingly, workers who do not comply with the policy must be removed by their employers. The goal is to impose “vaccine requirements” on “about 100 million Americans, two-thirds of the country’s workforce. This ETS measure pre-empts all contrary state laws.

The emergency powers under the Occupational Safety and Health Act of 1970 can be invoked where the Labor Secretary perceives a certain workforce to be a grave danger to the occupational safety and healthy working conditions. OSHA which is within the purview of the US Department of Labor comes under the supervision of the Secretary of Labor who is empowered under section 655(c) (1) of the Act to promulgate emergency occupational safety and health standards by bypassing the regular procedure.

The basis of the Supreme Court ruling made in per incuriam sits on question whether the scope of powers and authority vested with OSHA by the Act allows it to implement a much broader public health regulation like COVID-19 vaccine mandate. Simply whether OSHA has the necessary statutory powers to promulgate and enforce an extensive public health measure like the vaccine mandate in question? The court in its majority opinion contends that despite OSHA unmistakably being vested with power to regulate occupational hazards and enforce workplace safety standards, it is not conferred with power to regulate a broader public health regulation of this magnitude, which obviously falls outside of the OSHA’s legitimate reach. OSHA is given only powers to regulate dangers encountered within workplace setting. Thus, the ruling creates a picture that though COVID-19 is a risk prevalent in most workplaces it is not necessarily an occupational hazard in most. Therefore, OSHA’s vax or test mandate is not in reality a workplace safety measure, and which therefore OSHA is not within its expertise and authority to introduce and enforce. COVID-19 is rather viewed as a day-to-day danger out in the society, a ubiquitous health phenomenon.  

Moreover, the Supreme Court bases its opinion on the lack of historical precedent to show OSHA had in the past ventured in a similarly broad public health measure. The ETS in dispute is the first of its kind in the history of OSHA. In adjudging the purported mandate as having gone too far, the court sheds light on the fact that the mandate is not authorized by the Occupational Safety and Health Act of 1970. Moreover, the court points out that the Secretary of Labor does not have the required authority to impose the mandate. In striking down and staying the execution of the ETS mandate the Supreme Court did not go into the merits of the application before it, as United States Court of Appeal for the Sixth Circuit was later set to hear the case on its merits. However, Biden administration withdrew the vaccine mandate consequent to the Supreme Court ruling.

Contrary to the ruling on OSHA mandate, Supreme Court solidified its stance on legal status of yet another mandate referred to as CMS Medicare and Medicaid Programs Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule, popularly known as "CMS Vaccine Mandate" which requires compulsory vaccination in all health care workers at health care facilities which are funded from the two divisions of the US Department of Health, particularly Medicare and Medicaid. The difference which led to the distinctive rulings on two vaccine mandates lies in the nature of the business/work involved. CMS vaccine mandate is narrow in its scope and is held not to be arbitrary and capricious as it fell rightly within the scope of authority conferred to Secretary of Health And Human Services, the proper authority to introduce and implement the mandate. So the bottom line of the two Supreme Court rulings is that despite employers and businesses do not need to impose vaccine mandates on their workforces in compliance with OSHA mandate, they have to subject their workforces to compulsory vaccination under CMS mandate. The latter is a more limited mandate as it affects only health care workers employed at federally funded health facilities.

 

The crux of the ruling.

The crux of the Supreme Court ruling on ETS federal mandate is that what all matters in determining the legality of a vaccine mandate is the type and nature of work employees are assigned and the consequent risk they carry to contract COVID-19 virus and spread it to others while being employed, apart from the question whether the authority concerned has/ or has exceeded the legal/statutory power given by the parliament or Congress for that matter, in introducing a mandate. According to the gist of the US Supreme Court ruling, mandates can be freely imposed on health care workers, but extending of mandates to employees engaged in other less-risky work settings outside the health care system is questionable. Under the ETS measure exemptions allowed are largely illusory as they fail to distinguish different levels of exposure to COVID virus based on the type of industry. So it makes no difference whether one is a lifeguard or a linemen, the mandate applies across the board to even workers who work ‘’remotely 100 percent of the time” or who “work exclusively outdoors, treating them all as medics and meatpackers.

 

Biden administration retracted its mandate consequent to the ruling.

In an unexpected turn of events following the Supreme Court ruling, Biden administration officially pulled out from its federal vaccine mandate for businesses, effectively halting the requirement to comply from 26^th January 2022. The US media reports that OSHA is to make a request to the U.S. Court of Appeals for the 6th Circuit to dismiss all pending cases related to its mandate.

However, President Biden continually urges companies to put in place workplace vaccine mandates. “The court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy’’.

 

Did Supreme Court give a pass to forgo vaccination?

There’s a question whether companies and businesses can continue to introduce their own mandates despite the Supreme Court striking down OSHA mandate. The ruling does not lift an employer’s mandate already put in place or does not stop employers from enforcing a new one. Companies can implement their own mandates as long as they do not breach local or state laws. It should be noted that there is no law at federal level which prohibits imposing of vaccine mandates by businesses. However, at state level Montana and Tennessee possess laws which bans vaccine mandates.

 

The bottom-line.

US Congress, though it has enacted significant legislation addressing different aspects of COVID-19 pandemic, it has thus far refused to promulgate a vaccine mandate. Vaccine mandates are not an exercise of everyday executive power. They are not the outcome of a decision of the US Congress, the elected representatives. Instead they merely came into effect at the behest of the executive leadership.  They are purely executive decisions made by unelected officials who cannot be held accountable for the critical decisions they make, with so much potentially far-reaching consequences. They are a significant encroachment to our private lives, our health, and political and economic freedoms.

As a result of vaccine mandates, millions of workers are forced to leave their job while their employers are to incur heavy compliance costs in implementing vaccine policies. The Supreme Court categorically comments in its ruling on ETS that it is not the judiciary’s role to weigh the economic costs employees and businesses are forced to bear and intended public health benefits in saving hundreds of hospitalizations and preventing significant number deaths. Then who decides? In page 8 of its judgement Supreme Court observes that it is the duty of elected representatives to determine on this aspect through a democratic process. Gorsuch J observes that if we are to let all legislative powers to be exercised by unelected officials in the executive, it would dash the whole scheme of our constitution.

If there is one thing we can take away from the decision of the US Supreme Court on Biden’s federal vaccine mandate, it is the fact that courts are not there to respond to the pandemic or even try to mitigate the impact it has on the society. The task before the judiciary is to determine the constitutionality of vaccine mandates and the proper authority to promulgate and enforce them. Simply, decide who holds the power to enact and enforce the mandates? The unelected officials and the executive leadership may repeatedly chant the mandates are fundamentally for the larger public wellbeing countervailing individual economic costs and costs in terms of individual freedoms and liberties. But it is rather intrinsically a decision for the legislature to make on behalf of the populous, too solemn a decision for the executive leadership and the unelected officials to make.