WASHINGTON — The U.S. Supreme Court has blocked the Biden administration’s vaccine mandate that would have affected approximately 84 million American workers.
President Biden in September announced that convenience-store retailers, restaurant companies and other businesses with at least 100 employees had until Jan. 4 to ensure that their workers are fully vaccinated against COVID-19. Under the Vaccine Mandate Emergency Temporary Standard (ETS) from the U.S. Occupational Safety and Health Administration (OSHA), employees who are not fully vaccinated would have to wear face masks on the job and be subject to weekly COVID tests. There would be exceptions, including for those who work outdoors or only at home.
A federal appeals court panel on Dec. 17 allowed the vaccine mandate to move forward, effective Jan. 10, reversing a stay. The decision by a panel of the 6th U.S. Circuit Court of Appeals in Cincinnati overruled a decision by a judge in the U.S. Court of Appeals for the 5th Circuit in New Orleans that had paused the mandate nationwide.
“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the justices said in the unsigned majority opinion. “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’. … Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly.”
In a concurring opinion, Justice Neil Gorsuch said, “There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the ‘general power of governing,’ including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. … And in fact, States have pursued a variety of measures in response to the current pandemic. … The federal government’s powers, however, are not general but limited and divided.”
“Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers. … OSHA’s mandate fails that doctrine’s test. … The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA. In saying this much, we do not impugn the intentions behind the agency’s mandate. Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans.”
In their dissent, Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote, “Acting outside of its competence and without legal basis, the court displaces the judgments of the government officials given the responsibility to respond to workplace health emergencies.”
“While NRF has maintained a strong and consistent position related to the importance of vaccines in helping to overcome this pandemic, the Supreme Court’s decision to stay OSHA’s onerous and unprecedented ETS is a significant victory for employers,” David French, senior vice president of government relations for the National Retail Federation (NRF), said in a statement praising the decision. “As NRF and other plaintiffs articulated in our briefs before the court, OSHA clearly exceeded its authority promulgating its original mandate under emergency powers without giving stakeholders the benefit of a rulemaking process. NRF urges the Biden administration to discard this unlawful mandate and instead work with employers, employees and public health experts on practical ways to increase vaccination rates and mitigate the spread of the virus in 2022.”
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