Friday, January 7, 2022: Oral Argument Suggests U.S. Supreme Court Dubious OSHA Has Authority to Require Vaccination in ETS; Proponents of CMS Healthcare Worker Vaccination Mandate More Hopeful
The SCOTUS heard oral arguments on an expedited basis as to both the OSHA ETS and the Medicare/Medicaid Service Provider CMS Vaccine Mandate. The case involving the OSHA ETS is National Federal of Independent Business v. Department of Labor, Occupational Safety and Health Administration, Docket No. 21A244 (December 17, 2021). The case involving the Medicare/Medicaid Service Provider CMS Vaccine Mandate is Biden v. Missouri, Docket No. 21A240 (December 16, 2021).
The SCOTUS did not state when it would decide either case. Nonetheless, the sense was that the Court understood the urgent nature of both matters and would likely issue a single ruling this week, as we suggested last week might occur.
Nat’l. Federation of Independent Business, et al. v. OSHA
In its moving papers, state-appellants contend the Sixth Circuit’s order reinstating the OSHA ETS was improperly decided because OSHA can only regulate dangers workers face in the workplace, as opposed to hazards widely present in the public. Furthermore, COVID-19 does not qualify as a “grave danger” to workers specifically since the risk of death for unvaccinated workers is not significantly greater than the risk for vaccinated workers. Additionally, state-appellants argued the ETS does not comply with the requirements of the Occupational Safety and Health Act (“OSH Act”) since the mandate is not “necessary” to protect workers.
Private entity-appellants argued that permitting the ETS to go into effect would cause irreparable harm upon businesses unable to pay for testing or keep employees leaving their employ. Finally, private entity-appellants contended the “major questions” doctrine barred use of OSHA to impose a vaccination mandate; specifically, Congress did not clearly delegate to OSHA such a vast expanse of OSHA’s regulatory power as to make an ETS valid as to an airborne virus.
In opposition, the Biden Administration argued that OSHA merely exercised its power under the OSH Act in issuing an ETS necessary to protect employees from a grave danger from exposure to physically harmful agents or hazards. Because OSHA concluded COVID-19 is both a physically harmful agent and a new hazard resulting in a grave danger to unvaccinated workers, the ETS was necessary to protect worker health. As an ETS, the Biden Administration argued neither OSHA nor the Administrative Procedure Act required a notice-and-comment period as normally required for agency rulemaking.
During oral argument, the three liberal justices of the Supreme Court clearly appeared to be in favor of allowing OSHA to implement the ETS. Justice Elena Kagan focused on the fact that COVID would appear to be a grave risk, and that the ETS is necessary to address the “not typical” public health situation the country faces. Justice Stephen Breyer expressed cynicism that stopping the ETS would be in the public interest and was especially strident about the rising number of COVID-19 cases due to Omicron showing a continuing need for action. Justice Sonia Sotomayor also noted the concern with continuing infection rates (including incorrectly asserting that COVID-19 deaths are at an all-time high, the Omicron variant is as deadly as the Delta variant as to the unvaccinated, and misstating hospitalization numbers), while suggesting OSHA’s regulatory authority is a federal “police power” that permits action on public health.
However, the six conservative justices did not appear likely to vote in favor of allowing OSHA to implement the ETS. While Justice Samuel Alito suggested a potential middle ground whereby the court could order a short administrative stay of the mandate, Chief Justice John Roberts (as the court’s perennial “swing vote”) seemed to suggest he would side with striking down the ETS. Both Chief Justice Roberts and Justice Neil Gorsuch noted in questioning that vaccination mandates and orders are commonly exercised by the states, and that the Biden Administration’s “agency by agency” approach in instituting vaccine mandates is an attempt to work around Congress’ inability to legislate. Justice Amy Coney Barrett’s questioning suggested concern with the broad, generalized approach of the ETS being a “one-size-fits-all” standard, and Justice Brett Kavanaugh focused on the “major questions” issue under a theory OSHA did not have authority for a vaccine ETS.
Given the tenor of the oral argument, it is likely that the Supreme Court will enjoin implementation of the ETS.
Biden v. Missouri
The Biden Administration, as the appealing party (appellant), in written papers argued that Congress gave the Department of Health and Human Services (“HHS”) broad authority related to the provision of health care, and the standards a facility must meet for safety purposes. The Administration argued that vaccination against COVID-19 is necessary in the interest of the health and safety of healthcare patients. As an example, the Administration cited to the long history of requiring healthcare facilities to establish programs to prevent and control infectious diseases.
States opposing the mandate contended in their written papers that implementation of a vaccine requirement would create a staffing crisis in healthcare facilities, especially in rural America. Such staffing shortages would result in actual danger to the health and safety of patients unable to find adequate medical care. Moreover, the statute the Administration relied upon to seek to exercise the power to require vaccinations is a “housekeeping statute” that is not so expansive as to require vaccination. Allowing the Administration to use such a statute as sufficient authority for a vaccine mandate would impermissibly expand the statute to permit any action on the part of HHS. Finally, the states contended that HHS’ failure to provide notice and an opportunity for public comment made the mandate procedurally deficient.
Contrary to the oral argument as to the OSHA ETS, at least one conservative justice hesitant to implement the OSHA ETS appeared to acknowledge that the CMS vaccine mandate as to healthcare providers presented a more acute danger and concern. Specifically, Chief Justice Roberts focused his questions on the healthcare context of the CMS vaccine mandate. His point of view was that the health care context presented a close connection between a health threat and the government’s provision of healthcare through Medicaid and Medicare. Chief Justice Roberts also appeared to acknowledge that the Secretary of Health and Human Services had broader authority as to public health prerogatives than did OSHA.
Additionally, Justice Kavanaugh noted that private healthcare facilities were not a party arguing against the CMS vaccine mandate. Rather, the states were arguing only on behalf of “citizens” who run the private facilities. Justice Kavanaugh’s questions suggested the possibility he could rely on the legal doctrine of “standing” (that the states lacked standing to challenge the vaccination mandate because the mandate had not injured their legal interests) to reject the states’ opposition to the CMS vaccine mandate.
Finally, Justice Barrett’s questioning as to the CMS vaccine mandate also appeared to have an issue with the “one-size-fits-all” aspect of the mandate; however, counsel for the Biden Administration did suggest that the court could lift part of the Fifth Circuit order enjoining the CMS vaccine mandate. This “middle ground” could provide justices concerned about the public health goals of HHS being served by the mandate to allow implementation as to facilities caring for the population especially vulnerable or at-risk to COVID-19. Given the tenor of the questioning, healthcare providers receiving Medicaid or Medicare funding should be more temperate as to any hopes the Supreme Court will stop the CMS vaccine mandate.