THE Biden administration suffered a huge loss when the Supreme Court issued a stay on its general vaccine mandate policy, although the policy that applies to health care workers stands.
The decision focused on who has the power to make such a broad mandate. The Supreme Court found only Congress, not an administrative branch of government, had such a power.
The court explained: ‘The Biden administration using the Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), recently enacted a vaccine mandate for much of the nation’s workforce. The mandate, which employers must enforce, applies to roughly 84million workers, covering virtually all employers with at least 100 employees.
‘It requires that covered workers receive a Covid-19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.’
Many states, businesses and non-profit organisations challenged OSHA’s rule in appeal courts across the country. They argued that the mandate would have caused billions of dollars in compliance costs and forced hundreds of thousands of employees from their jobs.
The punishment for non-compliance would have been serious: unvaccinated employees who did not comply with OSHA’s rule must be ‘removed from the workplace’ and employers who commit violations faced hefty fines: up to $13,653 for a standard violation, and up to $136,532 for a wilful one. Further, employers did not have to offer the costly and draconian weekly testing option so for many employees they would have faced forced vaccination or unemployment.
The mandate was challenged as soon as the Biden administration sought to implement it. The Fifth Circuit stayed the mandate, the Sixth Circuit lifted the stay, and now with this decision the Supreme Court (SC) reimposed the stay, essentially blocking the vaccine mandate for now. The SC concluded that the applicants ‘are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate’.
The 6-3 majority held: ‘The central question we face today is: Who decides? No one doubts that the Covid-19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease.
‘The only question is whether an administrative agency in Washington, one charged with overseeing workplace safety, may mandate the vaccination or regular testing of 84million people. Or whether, as 27 states before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.
‘The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not the OSHA.’
The court said it sought to prevent ‘government by bureaucracy supplanting government by the people’.
The SC held that the OSHA did not have the power to make such a broad public health measure as no such power was delegated to it by Congress. Further it went on, even if Congress had so delegated it would ‘likely constitute an unconstitutional delegation of legislative authority’.
The general vaccine mandates were a public health measure, not a measure restricting occupational safety and health which the OSHA did have the power to implement.
OSHA’s indiscriminate approach failed to account for this crucial distinction – between occupational risk and risk more generally – and accordingly the mandate takes on the character of a general public health measure, rather than an ‘occupational safety or health standard’. As such the mandate failed.
This is a significant victory for bodily integrity and medical freedom and privacy. However, it was disappointing to see that the narrower vaccine mandate for healthcare workers was left in place. In a 5-4 decision the Supreme Court maintained the ‘healthcare worker rule’ which requires vaccination for about 10.3million workers at 76,000 healthcare facilities. Those healthcare workers who do not want to be vaccinated, having worked throughout the pandemic, now face forced jabs or unemployment.
This is also a huge victory for our friends at the Daily Wire, who were among the first to challenge this outrageous tyrannical law. While some so called centre-Right commentators here in the UK, no, I mean the South of France, sought to ‘punish five million vaccine refuseniks’, those with decency sought to stand up to the Covid tyranny. Ben Shapiro, who once came off the loser in debate with Andrew Neil, certainly is the winner when it comes to what matters: fighting for freedom, limited government and what kind of society we want to leave to our children. Shapiro, leading the Daily Wire, put his money where his mouth is in challenging this law. And won. It was also, as Shapiro pointed out, a huge victory for the Trump-appointed justices who handed down this decision.