Today, oral arguments in two cases are scheduled at the SCOTUS to address whether the federal vaccination mandate is a is a constitutional exercise of executive power as the pandemic rages around us. At issue in one case is whether the US Labor Department can legally impose a "vaccine-or-test" mandate to large employers [over 100 employees]; the issue in the second case is whether vaccines can be mandated for health care workers at facilities that receive federal funds. 

President Biden's administration implemented the "vaccinate-or-test" mandate through the Occupational Safety and Health Administration [OSHA]. Several challenges to the OSHA requirement arose immediately throughout the country; the dispute distilled into an appealed case right here in the Sixth Circuit. The Sixth Circuit panel assigned to the case reinstated the federal mandate in this opinion. 

The myriad parties to the suit that represented employers were granted certiorari; SCOTUS placed the case on its "fast track" merits docket. 

The federal government's argument was crafted during a sustained world-wide surge of the fast-spreading Omicron variant; over 800,000 people have died in the United States from the virus. This compares to the roughly 650,000 deaths from so-called "Spanish Flu" just over a Century ago. 

Amy Howe of SCOTUSBlog summarizes the legal position of the Solicitor General:

OSHA simply exercised the power that Congress gave it under the Occupational Safety and Health Act of 1970, which directs OSHA to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.” Emergency rules can go into effect immediately, without the notice-and-comment procedures normally required for agency rulemaking. In this case, [the Solicitor General asserts] OSHA concluded that the COVID-19 virus is “both a physically harmful agent” and a “new hazard,” and that unvaccinated employees who are exposed to the virus at work face a “grave danger.” 

Twenty seven states, led by Ohio, beg to differ. The states argue that the pandemic is being used as a "pretext" simply to get more folks vaccinated; the states assert hat not all hazards -like COVID- should be considered work-related for purposes of the "grave danger" emergency OSHA regulations. 

Another challenge to the OSHA emergency regulations comes from small business trade groups. They argue that forcing employers to implement a "vaccinate-or-test" policy foists unfair expenses on the company or their customers; the measures also disrupt an already-disrupted work force when workers [purportedly] quit in droves rather than comply with their employer's new COVID policy. 

Ms. Howe's blog post summarizes the federal government's response to the trade group and states' arguments:

[A] physically harmful agent, exposure to it in the workplace presents a grave danger to employees, and the [mandate] is necessary to protect employees from that danger.” Moreover, the administration adds, Congress not only envisioned that OSHA might require immunizations to protect workers, but in the American Rescue Plan of 2021, it also instructed OSHA to use its authority to protect workers from COVID-19 – and even appropriated funds for it to do so.

For their part, the health care workers' appeal focuses the Justices on the unprecedented "one-size-fits-all" nature of the OSHA mandates; they assert that the powers wielded by the Health and Human Services bureaucracy are too expansive without a clear statement from Congress. The Solicitor General, on the other hand, contends that Congress has already provided this power to OSHA and to HHS.

We here at Clarkston Legal will track this interesting case and let our readers know how SCOTUS decides the matter. These consolidated cases remind us of the Obamacare battles that made repeated trips up to the SCOTUS. 

Stay tuned.  

Post #631

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