January 13, 2022

"The Supreme Court on Thursday blocked the Biden administration from enforcing a vaccine-or-testing mandate for large employers..."

"... dealing a blow to a key element of the White House’s plan to address the pandemic as cases resulting from the Omicron variant are on the rise. But the court allowed a more modest mandate requiring health care workers at facilities receiving federal money to be vaccinated. The vote in the employer mandate case was 6 to 3, with liberal justices in dissent. The vote in the health care case was 5 to 4, with Chief Justice John G. Roberts Jr. and Justice Brett M. Kavanaugh joining the liberal justices to form a majority...."


Here are the opinions — NFIB v. OSHA and Biden v. Missouri.

From the OSHA case:
This is no “everyday exercise of federal power.” In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA’s mandate qualifies as an exercise of such authority. 
The question, then, is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. See 29 U. S. C. §655(b) (directing the Secretary to set “occupational safety and health standards” (emphasis added)); §655(c)(1) (authorizing the Secretary to impose emergency temporary standards necessary to protect “employees” from grave danger in the workplace)....

From Biden v. Missouri:

[H]ealthcare facilities that wish to participate in Medicare and Medicaid have always been obligated to satisfy a host of conditions that address the safe and effective provision of healthcare.... [T]he Secretary routinely imposes conditions of participation that relate to the qualifications and duties of healthcare workers themselves.... Of course the vaccine mandate goes further than what the Secretary has done in the past to implement infection control. But he has never had to address an infection problem of this scale and scope before.... Vaccination requirements are a common feature of the provision of healthcare in America: Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella....

We accordingly conclude that the Secretary did not exceed his statutory authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID–19.

From the dissent in the Biden case. This is by Justice Thomas (joined by Justices Alito, Gorsuch, and Barrett):

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). And we expect Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Ibid. (internal quotation marks omitted). The omnibus rule is undoubtedly significant—it requires millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months. Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.

52 comments:

Mike Sylwester said...

If Merrick Garland were on the US Supreme Court, he would have written a separate opinion that anti-vaxxers are domestic terrorists.

Can Of Cheese for Hunter said...

One of the reasons Merrick Garland is not on the Supreme Court?

Oooo that horrible creature named .... Mitch McConnell.

minnesota farm guy said...

Great day today! This and Senator Synema refusing to cave on the filibuster.

tim in vermont said...

Virus count in Boston wastewater down 40% from peak a couple days ago, making the graph look like a space needle, just like in South Africa, and post omicron there, they basically dropped all restrictions. This case has been overtaken by events.

zipity said...


How is it liberal justices on the Supreme court are very reliably liberal in their rulings, but "conservative" justices are far more likely to take liberal positions on cases?

Can Of Cheese for Hunter said...

oh wait - Merrick Garland is the horrible creature.

He can take his "parents who dare question the corrupt Teachers Union, or the insane inappropriate sexual and racial brainwashing of OUR young children" and label these concerned parents as "domestic terrorists" - can shove it up his...

in any case - Using OSHA to do this was always a stretch. The corrupt left are gonna need another cover. what next?

Yancey Ward said...

As I predicted here the day of arguments- the OSHA rule axed, the CMS one retained, though both should have been axed.

Jupiter said...

The difficulty here is that the Court seems to feel itself bound to take seriously the medical pronouncements of the regime. Thus the facts -- that the vaccine has killed more people than it has saved -- are irrelevant, because the regime denies them.

Hammond X. Gritzkofe said...

"health care workers at facilities receiving federal money"

My guess 98+% of health care workers. Probably will be misunderstood to apply to "workers at health care facilities..."

Ryan said...

Correct result. Nobody elected the OSHA bureaucrats who tried to force medical procedures on the American public. Such rulemaking belongs in the legislative branch, where representatives are accountable to the people.

From the opinion:

"Why does the major questions doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs—with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress. "

Real American said...

the health care vax mandate rule is creating shortages of health care workers. GREAT JOB, EVERYONE!

Also, mandating well-established vaccines that have been around for decades and have proven track records is a far cry from mandating these new ones that have unknown long term effects and that clearly do not prevent infection or transmission. At this point, the vaccines seem to only protect you from serious covid symptoms and don't stop transmission so they aren't protecting patients, only the vaxxed workers.

cubanbob said...

The CMS ruling makes no sense in the context of the current vaccines. These vaccines have not been proven to prevent transmission of the disease so the logic of equating them with vaccines that have been demonstrated to prevent the spread of a given disease is flawed. The regulation has to have a rational purpose but in this instance it doesn't. Beyond that if the CMS decision is based on health care then OSHA is the wrong agency to issue the mandate. It would seem the FDA should be the one issuing the mandate for hospitals and facilities that accept federal funding if they were proven to prevent transmission of the disease.

Mark said...

It should be noted that it is NOT the end of the day on the Medicare/Medicaid healthcare workers cases. Those now go back to the lower courts for further proceedings.

I expect that there it will be shown that the underlying facts to justify the mandate have changed drastically so that the mandate can no longer be justified. Namely, that omicron has shown the existing vaccines to be ineffective in stopping transmission. That is enough to require that the regulation be nullified.

Hammond X. Gritzkofe said...

Thus does SCOTUS make legally binding determination of medical efficacy.

Browndog said...

. Probably will be misunderstood to apply to "workers at health care facilities..."

*misunderstood

Heh-that's cute.

Yea, they might accidentally blow a huge hole in the limitations through interpretations and definitions.

Joe Smith said...

All liberal, totalitarian fascists have the sadz : (

Browndog said...

Oddly enough, at the same exact time SCOTUS issued it's opinion the DOJ announced sedition/conspiracy charges against 5 Oath Keepers related to J6.

Dave Begley said...

I skimmed the OSHA case and then sent it to a Creighton Law prof who had opined in the local paper that the OSHA mandate was "perfectly legal."

I told her in an email that her politics can't cloud her legal opinions and that she needed to be cruelly neutral.

Maynard said...

It appears that the three liberals embarrassed themselves by ruling for their policy preferences rather than the Constitution.

Well, Sotomayor is too stupid to be embarrassed. Kagan and Breyer should be ashamed.

rcocean said...

liberal justices ALWAYS vote based on their politics. Only Dumbo Conservatives continue to be shocked at this. Year, after year, after year, after year. They've pointed this out 1,999 times. Nixon talkeda about in 1968.

Yet nothing changes.

Maybe itstead of nominating blank slates who promise to "follow the constitution", Republicans should start nominating judges who vote their CONSERVATIVE politics.

rcocean said...

You'll notice that Kavanaugh tried to split the baby again. No conservatism for him. As for praising McConnell for keeping Garland off the bench.

Trump kept Garland off the bench. By winning in 2016. WIthout Trump we'd have a 6-3 Liberal majority, with "Moderate" Roberts helping them out.

All McConnell did was delay the vote till 2017. If Hillary had won...

Bender said...

As expected, despite all the wailing for the Court to say the employee vax mandate was unconstitutional, the Court ruled on the very narrow -- but foundational -- issue that OSHA does not have the statutory authority to impose any public health mandates. Thus, no need to get its hands dirty on all the other questions.

Bender said...

There are also different issues and different administrative records in the OSHA and healthcare worker cases. That could explain Roberts and Kavanaugh flipping.

Duke Dan said...

Good. Now do the federal contractor mandate.

Achilles said...

Can Of Cheese for Hunter said...

One of the reasons Merrick Garland is not on the Supreme Court?

Oooo that horrible creature named .... Mitch McConnell.


Mitch is such a hero.

The Democrats only got half of their obviously unconstitutional power grabs through.

That Mitch is such a fighter!

Thank you GOP for only losing half the time.

And never, ever winning.

How is it that we never see anything go in the other direction? What happened to funding for the wall Mitch? I mean other than the obvious.

But yeah be proud of your support for Mitch. You are such a tool.

Mike (MJB Wolf) said...

Health care workers and PhD’s are among the most anti-vax demographics. Right up there with African-Americans. We are in the midst of a healthcare worker shortage because of that. Forcing an increasingly ineffective vaccine on people is wrong. Sorry to see the Supremes split the baby this way. Kavanaugh. Crap.

Achilles said...

Bender said...

There are also different issues and different administrative records in the OSHA and healthcare worker cases. That could explain Roberts and Kavanaugh flipping.

That could explain Roberts and Kavanaugh flipping.

It could also be that they are just there to make sure the aristocracy slowly but steadily encroaches on freedom.

The court will never take power away from Washington DC.

Ever.

c365 said...

I agree this ruling does not do what some assume it does. The health care workers ruling shows the SC believes the government has broad, legitimate vaccine mandate power -- if permitted by Congress. This means it will uphold state mandates if crafted properly.

This isn't a good day for freedom. It's just a small battle limited government types have won, while playing the game of the statists. But it's still ultimately their game, and they will eventually out play us.

Achilles said...

Mike Sylwester said...

If Merrick Garland were on the US Supreme Court, he would have written a separate opinion that anti-vaxxers are domestic terrorists.

And maybe people would notice.

But instead we get Kavanaugh and Roberts splitting the baby on our freedom.

This ratchet only goes one way. The "conservative" judges are just there to fool the rubes.

Michael K said...


Blogger Mike (MJB Wolf) said...

Health care workers and PhD’s are among the most anti-vax demographics. Right up there with African-Americans. We are in the midst of a healthcare worker shortage because of that. Forcing an increasingly ineffective vaccine on people is wrong. Sorry to see the Supremes split the baby this way. Kavanaugh. Crap.


Agree completely. Ask Betty White how her booster went. Oh wait....

Big Mike said...

Blogger Mike (MJB Wolf) said...

Health care workers and PhD’s are among the most anti-vax demographics


It does make one wonder what they know about side effects of the vaccine that we don't.

Drago said...

Instapundit sums it up well: "What must it be like to be on the side that never receives unpleasant surprise “defections” in highly politicized Supreme Court cases? I’ll never know myself, but it must feel freaking great."

rehajm said...

Sean Davis
@seanmdav
· 1h
Props to Biden chief of staff @RonaldKlain, whose idiotic retweet characterizing the illegal vaxx mandate as a "work-around" for the federal government to force vaccination found its way into the concurring SCOTUS opinion nuking the vaxx mandate

jpg said...

The Supremes punt again. Your privacy rights don't exist beyond anything the fickle 5 decide.

BillieBob Thorton said...

Can of Cheese for Hunter said:

The corrupt left are gonna need another cover. what next?

The left(Democrats) never, never back down and never give up Unlike the Republicans the Left(Democrats) keep pushing their agenda forward, always. Look for Biden to go after medicare and medicade benefits next to get his mandates in place. We can't have the peoples making their own decisions don't ya know.

Drago said...

Utilizing Sotomayor Wise Latina "math", there were approximately 13,557 Supreme Court Justices casting dissenting votes against the "majority" ruling.

I'm surprised no one mentioned that.

Perhaps its because 13,554 of them have been hospitalized for COVID and are on ventilators.

JK Brown said...

Interesting turn of events. I have a friend who has never had one day off for the Pandemic Panic from his job in sheetmetal fabricator. His wife was working from home as as a billing clerk for a health care system. He wasn't sure he wouldn't be fired tomorrow, his wife had the stay in place. Now, he's not likely to be fired, but she is as her employer doesn't permit working from home to save her from the forced vaccine.

Now the media and Old Joe will cry the hospitals are being overrun with cases. Well, you fired the healthcare workers. And 2 yrs in, we don't have more hospital beds or healthcare workers. Fortunately these idiots weren't in charge back in '42 an '43 or we'd still be waiting for enough ships and trained soldiers to land in Europe.

Owen said...

I predict huge sudden departures of healthcare workers from any organization that takes Medicare or Medicaid. Which is pretty much all of them.

Did you notice the stuttering in the supply chain for fresh vegetables, microchips, and other mere stuff? That's nothing compared to the crash that will hit healthcare. The departing workers will either switch into some other line of work, or retire, or become temps (see: traveling nurses) at incredible wages. The clinics and hospitals will ration services as never before.

Roberts and Kavanaugh apparently can't imagine such consequences, so "Federal money" is to them a perfectly good way to justify this mad endorsement of a measure that DOES NOT ADDRESS THE PUBLIC HEALTH "THREAT. Because the "vaccinations" don't block transmission, therefore Omicron will move through the population whether it is vaccinated or not.

Morons.

Wince said...

JUSTICE THOMAS, with whom JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE BARRETT join, dissenting.

The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate. We presume that Congress does not hide “fundamental details of a regulatory scheme in vague or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468 (2001). Yet here, the Government proposes to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures. The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a “fundamental detail” of the statutory scheme. Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one. See 22 U. S. C. §2504(e) (authorizing mandate for “such immunization . . . as necessary and appropriate” for Peace Corps volunteers).

Critter said...

Why is it that the OSHA case seems to be about much more than COVID vaccines. If Brandon had won, there is no limiting principle to stop the executive through OSHA from enforcing other mandates such as gun ownership, etc. Our Constitutional rights dodged a bullet from the authoritarian left today, but don’t assume they won’t come back with more power grabs on the way to their vision of the perfect society modeled after China.

LA_Bob said...

Some you might enjoy this:

https://www.howbadismybatch.com/

Apparently a very small number of vaccine batches or lots are associated with large numbers of adverse events. This website enables one to input their vaccine lot number and check out the risk profile. Some videos and other info as well.

We know the VAERS database is woefully incomplete, so this information is likely incomplete as well.

Thanks to Robert Malone ad his substack.

https://rwmalonemd.substack.com/p/how-bad-is-my-batch

Owen said...

LA_Bob @ 5:3: Not sure if I will "enjoy" this information but it seems pretty useful. Whodathunk that product quality might be less than perfect? Or that quality might vary by the batch? I mean, nothing else in life does that, right? We were given Profound Assurances by our Top People that all was well.

Fingers crossed, the defects are modest and rare.

Owen said...

Biden is telling businesses to ignore the Supremes' ruling in the OSHA mandate case.

Wild.

LA_Bob said...

Owen,

I agree "enjoy" was not the best choice of words.

There are videos at the site that show the influenza vaccines show much less variability in quality than the COVID vaccines. I find it appalling that the CDC / FDA does not seem to find this appalling.

I don't know if there is anything proactive a vaccinee can do other than ask for the vaccine lot before the jab and check it out at the website.

The Godfather said...

Every year I get my flu shot. Every so often I get a shot for shingles or tetanus or something else. Nobody forces me to do this. There are no "mandates". If there were "mandates", I might think twice: If something is good for me, why FORCE me to do it?

Won't Covid be history in a couple of months, after omicron infects everyone who isn't immune, and leaves the "victims" alive and immune?

walter said...

"Healthcare workers around the country are ordinarily required to be vaccinated for diseases such as hepatitis B, influenza, and measles, mumps, and rubella"
So flu shots same as MMR?
Salk is sulking.
Not to mention the burgeoning safety "signals", lack of normal oversight, control group and push to jab these "novel" therapeutics into children and preggers.
Oh..long term safety standards for prior mandates vs these?

Yancey Ward said...

"Won't Covid be history in a couple of months, after omicron infects everyone who isn't immune, and leaves the "victims" alive and immune?"

Short answer, no. How many colds have you had in your long life? COVID will return with the changing of Spring into hot Summer in the South and Southwest, and return in the Winter everywhere else. The only way this ends is when we stop testing for it. Right now, I don't see us stopping the testing regime any time soon.

Greg The Class Traitor said...

Fuck Kavanaugh

The Lefties who he backed today were the same people telling us he's a rapist. So, since he's willing to vouch for them, I guess that means he's a rapist

You covered the WSJ article that blew away any possible justification for the Medicaid ruling. Getting the shots does not prevent you from getting other people sick with Covid.

The idiot lawyers who argued the case should have made this point. They didn't. But that's no excuse. With Sotomayor pulling "facts" out of her ass, there's no reason why the rest of SCOTUS couldn't have gone by the clear reality that the mandates have no justification

Sure, fuck Roberts. But we knew he was a lying asshole

Now we know the same about Kavanaugh

mikee said...

Pediatricians in Austin aren't testing kids for COVID when the kids have sniffles and short term low grade fevers, i.e., when they have Omicron. It is over as far as sane people are concerned. The elderly and infirm can continue to mask and isolate forever, but for 99.5% of the population COVID is now and will be in future just another cold/flu type virus, to be endured every year. China is asshole for causing this, I hope everyone agrees.

Greg The Class Traitor said...

Mark said...
It should be noted that it is NOT the end of the day on the Medicare/Medicaid healthcare workers cases. Those now go back to the lower courts for further proceedings.

I expect that there it will be shown that the underlying facts to justify the mandate have changed drastically so that the mandate can no longer be justified. Namely, that omicron has shown the existing vaccines to be ineffective in stopping transmission. That is enough to require that the regulation be nullified.


Every health care worker will either get the shot, or get fired.

Then the Biden* Admin will demand they all get boosters, and the shitheads on SCOTUS will let that go, too

I'd love to see a lower court kick it back up with the reality that "the shots don't protect anyone".

But that doesn't excuse the shamelessly stupi8d vote by Kavanaugh and Roberts

Greg The Class Traitor said...

rcocean said...
You'll notice that Kavanaugh tried to split the baby again. No conservatism for him. As for praising McConnell for keeping Garland off the bench.

Trump kept Garland off the bench. By winning in 2016. WIthout Trump we'd have a 6-3 Liberal majority, with "Moderate" Roberts helping them out.

All McConnell did was delay the vote till 2017. If Hillary had won...


McConnell made Trump's win possible, by keeping the seat open, and giving voters a reason to pull the trigger for Trump

Yes, McConnell is a shitty asshole. But he did keep Garland off the Court, make possible Trump's victory, and shepherd 3 not altogether shitty people onto SCOTUS

But Kavanaugh clearly is mostly shitty

Gretchen said...

What is "fully vaxxed"? Even the EU is questioning the long-term immuno-e compromising effect of endless boosters.

This ruing is especially foolish in light of the fact that hospitals are calling vaxxed workers with active COVID to work but not allowing healthy unvexed workers to care for patients