“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects . Supreme and appellate court cases in the series can be found by issue and by judge at this link.
In a 6-3 ruling in which Trump justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett provided the deciding votes, the Supreme Court directly endangered the health and safety of all of us by reinstituting a block by lower court Trump judges on the Occupational Safety and Health Administration (OSHA) requirement that big businesses ensure that workers are vaccinated for COVID-19 or are masked and tested at least weekly. Gorsuch and Barrett brought the Court to within one vote of also sustaining halts ordered by Trump district judges of the Department of Health and Human Services (HHS) requirement that hospitals and others that want to receive funds under Medicare and Medicaid must ensure that doctors and other health care workers who interact with vulnerable patients served by these programs be vaccinated against COVID-19. The January 2022 big business ruling was in NFIB v OSHA. The health care worker decision was in Biden v Missouri.
As discussed earlier in this blog, under its authority to protect worker health and safety, OSHA issued a requirement in November that businesses with more than 100 workers ensure that employees are vaccinated or that they wear masks at work and get tested at least weekly. Almost immediately, two Trump judges on the Fifth Circuit, joined by a third very conservative judge, issued a preliminary ruling that blocked the requirement from taking effect. When the case was reassigned to the Sixth Circuit under a procedure for cases where there are challenges in multiple circuit courts, a panel of the Sixth Circuit, which included a conservative judge nominated by President George W Bush, dissolved the Fifth Circuit stay and put the OSHA rule back into place. The majority ruled that the OSHA statute’s “language” and “structure,” along with “[l]ongstanding precedent,” clearly give OSHA the authority to adopt rules to “protect workers against infectious diseases” like COVID-19. Trump judge Joan Larsen dissented, and corporations went immediately to the Supreme Court to reinstate the stay of the OSHA rule. The Court heard oral argument on January 7.
In an unsigned opinion a week later, in which the three Trump justices cast key votes, the Court itself granted a stay that blocked the OSHA rule while the litigation proceeds. The 6-3 majority maintained that the challengers “are likely to succeed on the merits” of their claim that OSHA “lacked authority to impose” the vaccine-or-test requirement. They argued that such a broad rule, affecting more than 80 million employees, can be sustained only if the Congressional law “plainly authorizes” it, and that the statute did not “speak clearly” enough, since COVID imposes danger both inside and outside the workplace. Although the majority acknowledged that the rule could “save over 6,500 lives and prevent hundreds of thousands of hospitalizations,” it concluded that the claimed harm to industry of “billions of dollars” in costs and workers deciding to “leave their jobs” was enough to warrant the stay, since Congress had not specifically “given OSHA the power” to adopt the rule. Justice Gorsuch wrote a troubling concurring opinion, joined by Justices Thomas and Alito, stressing the importance of the ruling in order to prevent what he called “unintentional, oblique, or otherwise unlikely delegations of the legislative power” to agencies like OSHA and suggesting that if the law “really did” authorize the OSHA rule it would “likely” be an “unconstitutional delegation of legislative authority.”
Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote a powerful dissent. They explained that OSHA “did what Congress commanded it to” by “acting to address COVID-19’s continuing threat” in the “confined indoor spaces” where most people work. On the other hand, they wrote, the Court majority was “[a]cting outside of its competence and without legal basis” in “displac[ing] the judgments of the Government officials given the responsibility to respond to workplace health emergencies” like COVID-19. The challengers are not “likely to prevail”, they went on, because the OSHA rule “perfectly fits the language of the applicable statutory provisions.” OSHA has “long regulated risks that arise both inside and outside of the workplace” like COVID-19, they continued, and there was no proper basis for the majority’s conclusion that Congress was required to authorize the OSHA rule more specifically. The majority also contradicted the principles governing preliminary relief in such cases, the dissent explained, because the record was clear that the “interest in protecting workers from disease and death” — including saving “over 6,500 lives” and preventing “over 250,000 hospitalizations” in six months — “overwhelms the employers’ alleged costs.” Overall, the dissent concluded, the majority ruling improperly “usurps a decision” by the “responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”
Two of the three Trump justices – Gorsuch and Barrett – tried to go even further and joined a 5-4 dissent that would have upheld Trump district judge decisions that blocked the HHS rule on vaccination of health workers who interact with vulnerable Medicare and Medicaid patients. As discussed earlier in this blog, under its authority to set terms and conditions for hospitals and other facilities that want to receive federal Medicare and Medicaid funds, HHS issued a requirement that health care workers who interact with vulnerable patients under these programs must be vaccinated against COVID-19. Trump district judges in Missouri and Louisiana issued preliminary injunctions, however, that blocked the rule as applied to about half of the states. When appellate courts declined to stay these harmful rulings, the Justice Department went to the Supreme Court, and the Court heard oral argument on January 7.
Trump justices Gorsuch and Barrett joined dissents by Justices Thomas and Alito that argued, as Thomas put it, that the federal government “has not made” a “strong showing” that it is likely to succeed in upholding the health care requirement and thus cannot justify a stay of the lower court decisions. As the majority ruled in the OSHA case, the dissenters maintained that Congress did not use “exceedingly clear language” in what Thomas called the “hodgepodge of provisions” in the Medicare and Medicaid laws to justify the vaccine regulations affecting millions of health care workers. Alito’s dissent used even stronger language, criticizing the HHS rule as a “federal law” that is “not made by Congress” but by “unelected administrators.” He also maintained that HHS had failed to seek comments on its rule before it was issued, and that the majority improperly “rewards this extraordinary departure from ordinary principles” by allowing the HHS rule to take effect as the litigation against it continues.
An unsigned majority opinion rejecting these arguments and granting a stay against the lower court decisions was joined by Justices Breyer, Sotomayor, and Kagan, as well as by Chief Justice John Roberts and Kavanaugh. The majority explained that “perhaps the most basic” function of facilities that receive Medicare and Medicaid funds “is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety.” Accordingly, the majority went on, “Congress authorized” HHS to promulgate requirements for facilities that receive such funds that are “necessary in the interest of the health and safety” of such patients. The majority wrote that the vaccine rule “fits neatly within the language of the statute,” and that the dissenters were wrong to argue otherwise. The majority also rejected Alito’s notice-and-comment argument, finding that the record clearly showed “good cause” to proceed promptly with the rule, particularly in light of concerns about the upcoming “winter flu season” and the need to reduce COVID-19 “hospitalizations and deaths.”
The net result of the Court’s decisions is that while millions of healthcare workers and Medicare and Medicaid patients will be better protected from COVID-19 due to vaccinations, millions more workers in workplaces across the country will not, and millions of Americans face serious risk of infection, hospitalization, and even death from COVID-19. The courts have yet to fully consider challenges to other vaccination and related rules for federal contractors, Head Start facilities, and others, and OSHA may well consider more targeted rules aimed at a smaller number of big businesses. In short, it is clear that federal judges matter directly to the health and safety of all of us concerning COVID-19 and, as part of our fight for our courts, it is crucial that the Senate continue to confirm federal judges who will properly respect the long-recognized authority and expertise of federal agencies like HHS and OSHA that act appropriately to protect our health and safety.