A Win at SCOTUS on Vaccine Mandates

January 14, 2022

On Thursday afternoon, the Supreme Court issued a mixed bag regarding President Biden's vaccine mandate. The Court struck down OSHA's mandate requiring all employers with over 100 employees to enforce a vaccine mandate. However, Justice Roberts and Kavanaugh sided with the liberal justices to permit the mandate on those working with Medicaid and Medicare recipients to move forward.

Overall, yesterday was a win for liberty at SCOTUS. The OSHA mandate is a larger victory as that mandate reached the government's tentacles into the private business of employers and employees that had no relationship with the government. OSHA is charged with administering occupational health and safety standards -- not broad public health policy. As we are all well aware, COVID doesn't just spread in work environments; it spreads at family events, social events, all aspects of life. OSHA only has the authority to set standards to protect workers -- not people in every aspect of their life. In addition, the rule is so broad it treats landscapers who spend a majority of their time outside equal to those who work indoors in close quarters. It was clear that the Biden administration simply wanted to create a vaccine mandate and searched high and low for any remote legal authority -- the Supreme Court saw through this.

The majority opinion noted that Congress has passed plenty of legislation in light of COVID. If they wanted to pass a vaccine mandate, they could have. A policy that impacts over 80 million people should be decided by Congress. Not OSHA, who lacks the authority from Congress. Biden far overreached any authority he had and thankfully the Supreme Court was there to stop his regime.

Meanwhile, in the Medicaid and Medicare case at the Supreme Court, the majority said that the Secretary is permitted to make a long list of detailed conditions with which facilities must comply to receive Medicare and Medicaid funds. The Court also found that the Secretary was able to require the vaccine for workers to be included in the list -- especially due to the vulnerable nature of those receiving Medicaid and Medicare.

While this will continue to play out in the lower courts, we are hopeful they will continue to rule for freedom in the face of this mandate. As Indiana Attorney General Todd Rokita told Tony Perkins on "Washington Watch," this is "going to bode well" for the federal contractor mandate challenge. "We have to argue those cases in front of the same court," Rokita said. "So [there's a] slightly different kind of a fact pattern in the sense that the federal contractor case was an executive order made by President Biden to do this to employees that had federal contracts with the federal government. But if they smack down the OSHA argument because OSHA was never meant by Congress to be that broad, then it's also kind of hard to argue, then, that the federal government through the executive branch ... can say to the employee of a federal contractor, you have to do this, that and the other thing that has nothing to do with the federal contract."

Meanwhile, Rokita noted that the Head Start case may go along the same lines as the Medicaid and Medicare ruling. "I do see the similarities [with the health care workers mandate] in the sense that Head Start is federally funded," he said. "These hospitals are also federally funded through Medicare, Medicaid, and so there's a nexus to the federal government there that's stronger than an OSHA... The HHS secretary in the CMS case has, by definition, broader public health concerns." However, "you could argue that that's not the role of federal government," he observed. It "would be a great argument." We shall see.

While we would like to have seen a win for liberty in both cases -- as nobody should be forced to make the choice between their job or the vaccine -- we applaud the Supreme Court for rejecting Biden's attempt to overreach into the health decisions of private employees. The halt yields a beautiful result of allowing private health decisions to be made by people without fear or coercion.