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January 14, 2022

The Supreme Court upholds CMS vaccine mandate, but strikes down large employer mandate

Daily Briefing

    The Supreme Court on Thursday blocked the Biden administration's vaccine mandate for businesses with at least 100 employees but let stand a separate mandate that affects many health care workers.

    The Covid-19 vaccine mandate: Here's what's in CMS' new rule


    In November, the Occupational Health and Safety Administration (OSHA) issued an interim final rule that would require U.S. employers with 100 or more employees to mandate Covid-19 vaccination for their workers.

    Separately, CMS released its own rule that would require health care facilities participating in Medicare or Medicaid to mandate vaccinations for their workers.

    Both rules faced immediate legal challenges, particularly from businesses, religious institutions, and GOP-led states, culminating in Thursday's Supreme Court ruling.

    Supreme Court blocks OSHA mandate

    In a 6-3 ruling, the Supreme Court blocked OSHA's mandate, saying the mandate exceeded OSHA's authority granted by Congress.

    "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 majority wrote in an unsigned opinion.

    The justices added that OSHA's mandate would have required more than 80 million people to get vaccinated against the coronavirus or wear masks and be tested each week, a move that it said was not justified by workplace hazards.

    OSHA's mandate "draws no distinctions based on industry risk of exposure to Covid-19," the majority opinion said, arguing that the mandate was "a significant encroachment into the lives—and health—of a vast number of employees."

    In a dissenting opinion, Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer argued that the Supreme Court was substituting its own judgment for that of government officials charged with protecting workplace safety.

    "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," the justices wrote.

    "Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from Covid-19?" the justices added. "An agency with expertise in workplace health and safety, acting as Congress and the president authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?"

    Supreme Court allows CMS mandate to stand

    However, in a separate 5-4 ruling, the Supreme Court let stand CMS' vaccine mandate for health care workers, with the majority saying the mandate "falls within the authorities that Congress has conferred upon" HHS Secretary Xavier Becerra.

    "The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it," the majority wrote in an unsigned opinion. "At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have."

    In a dissenting opinion, Justice Clarence Thomas wrote that the case raised the question of whether the Biden administration can "force health care workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo."

    Without "exceedingly clear" authorization from Congress, Justice Thomas argued, the government shouldn't be able to force health care workers "to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months." Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett signed onto the dissenting opinion.


    President Joe Biden said he was "disappointed that the Supreme Court has chosen to block common-sense, lifesaving requirements for employees at large businesses that were grounded squarely in both science and the law." Biden called on businesses to act on their own to implement vaccine requirements.

    Biden also said that the ruling to allow the CMS mandate to stand will "save lives."

    The American Medical Association (AMA) also praised the ruling allowing the CMS mandate to stand, but said it was disappointed the court had struck down the OSHA mandate. The "Supreme Court today halted one of the most effective tools in the fight against further transmission and death from this aggressive virus," Gerald Harmon, president of AMA, said. "Workplace transmission has been a major factor in the spread of Covid-19."

    The National Retail Federation said the ruling on the OSHA mandate was a "significant victory for employers."

    "It's a relief," Eric Fuller, CEO of U.S. Xpress Enterprises, said. "As much as I wish everyone would get vaccinated, this mandate was going to create a lot of headaches for a lot of companies."

    Steve Vladeck, a professor at the University of Texas School of Law, said the ruling on the OSHA mandate could have implications for future legal cases.

    "These cases were not referenda on vaccine mandates—which can still come from states, local governments, and private businesses—they were referenda on whether these kinds of expert policy decisions are better made by agency experts accountable to the president or by judges accountable to no one," Vladeck said. "And if the answer is the latter, that's going to be true long after, and in contexts far beyond, the immediate response to the [Covid-19] pandemic." (Sherman/Gresko, Associated Press, 1/14; Liptak, New York Times, 1/13; Totenberg, NPR, 1/13; de Vogue, CNN, 1/13; Cutter, Wall Street Journal, 1/13)

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