The U.S. Supreme Court today heard oral argument on applications to stay both the Occupational Safety and Health Administration (OSHA) and Centers for Medicare & Medicaid Services (CMS) vaccine mandates. As in prior cases involving the so-called "major questions doctrine," Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor favored the federal government's position. Justices Clarence Thomas, Neil Gorsuch and Samuel Alito appeared to favor the petitioners' position. More difficult to read were Chief Justice John Roberts and Justices Amy Coney Barrett and Brett Kavanaugh. As a general matter, there seemed less controversy about the CMS mandate than the OSHA mandate.
The Court wrestled with the major questions doctrine itself. Previously, when the Court chastened the Centers for Disease Control and Prevention (CDC) for claiming the power to impose a moratorium on between 6 million and 17 million residential tenant evictions, the Court emphasized, "We expect Congress to speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance.' " Likewise, the Court was skeptical when the U.S. Environmental Protection Agency (EPA) claimed "to discover in a long-extant statute an unheralded power to regulate 'a significant portion of the American economy.' "
A key question at the argument was whether the agencies had authority to promulgate their rules under statutes that did not specifically say anything about vaccines, COVID-19 or the like. The Court wrestled with whether the major question doctrine applies only when a statute is ambiguous, conflicting or anytime when agency action is a "big deal" and not expressly authorized. Prior case law also discussed the applicability of the doctrine when a statute is cryptic, subtle or oblique, and the Court asked what, if anything, else is needed.
The Court raised other concerns, too. With respect to both mandates, the Court also asked how it should determine when there is an emergency and when an emergency is over, so as to require agencies to engage in formal notice and comment rulemaking, as ordinarily required by the Administrative Procedure Act. And Chief Justice Roberts appeared skeptical of the idea that the measures in these two cases should be analyzed solely under the claimed authorities to issue them, when they appeared to be a broader effort by the executive branch to "work around" congressional and state inaction.
Consistent with their comments and questions today, Justices Kagan, Breyer and Sotomayor were in the dissent in both prior major questions cases.1 Chief Justice Roberts was in the majority in the prior cases, but there is more to the story. In the eviction moratorium case, the district court granted summary judgment against the CDC, but stayed its ruling. The first time up the appellate chain, Justice Kavanaugh declined to vacate the stay because the moratorium was due to expire.2 Chief Justice Roberts also did not vote to vacate the stay. When the moratorium was renewed, Justice Kavanaugh and Chief Justice Roberts joined with the others to vacate the stay when the appeal process was repeated.
Chief Justice Roberts challenged the government's argument that Congress has already acted as relates to the OSHA mandate, observing that Congress acted more than 50 years ago, closer in time to the Spanish flu. With respect to the OSHA mandate, Justice Barrett was inclined to distinguish OSHA's authority to target particular industries such as meatpacking and healthcare. Justice Breyer emphasized that the hearing was about whether to stay the mandates, not rule on them conclusively. So he looked at both mandate cases from the standpoint of a court sitting in equity seeking to act in the public interest and to balance the respective potential harms. He viewed the harms to the public associated with COVID-19 as the most compelling. Justices Alito and Thomas were concerned about OSHA's authority to issue a regulation that would have an irrevocable impact on the employee outside the workplace.
The CMS mandate case involves the spending clause power rather than any general power. Justice Kagan was quick to point out that the federal government has more authority under this clause than the other, but Justice Alito asked whether the states really had the required "clear notice" that a mandate would issue, especially in the absence of CMS consulting with the states beforehand as ordinarily required. Chief Justice Roberts seemed more at ease with notice about general health and safety conditions provided by CMS and about CMS' statutory authority for the mandate in comparison to OSHA's.
In comparison, Justice Barrett wanted to know if she should look at each condition of participation separately to determine whether CMS has statutory authorization, and Justice Alito appeared bothered by CMS' reliance primarily on definitions as opposed to express grants of power. Justice Gorsuch asked whether CMS was in violation of the anti-commandeering doctrine by, in effect, directing the states' employees. Standing was also at issue. Justice Kavanaugh observed that it was strange that the regulated healthcare institutions were not in front of them complaining about the mandate, as compared to the states. This brought into focus the parens patriae standing of the states and its limits for Justices Thomas and Alito.
The Court has not indicated when it will issue a decision on the stay, but with compliance deadlines around the corner, the Court may choose to rule quickly in this matter. OSHA has stated that it will begin issuing citations for noncompliance by Jan. 10, 2022. New CMS guidance requires that all staff of covered facilities have received at least one dose of a vaccine by Jan. 27, 2022.
In the meanwhile, employers should consult with counsel about what to do, especially in states such as Florida with partially conflicting state regulatory regimes.
1 See Alabama Ass'n of Realtors v. Dep't of Health and Human Servs., 141 S. Ct. 2485, 2490 et seq. (2021) (Breyer, Sotomayor and Kagan, JJ., dissenting); Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 334 et seq. (2014) (Kagan, Ginsburg, Breyer and Sotomayor, JJ., concurring in part and dissenting in part).
2 Alabama Ass'n of Realtors v. Dep't of Health and Human Servs., 141 S. Ct. 2320, 2321 (June 29, 2021) (Kavanaugh, J., concurring).