In the News - SCOTUS and Vaccine Mandates

Show Notes

Nia and Aughie give a quick take on two recent vaccine mandate rulings by the U.S. Supreme Court. 

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Nia Rodgers: Hey Aughie.

John Aughenbaugh: Good morning, Nia. How are you?

Nia Rodgers: I'm good. How are you?

John Aughenbaugh: I'm good.

Nia Rodgers: We decided that we were going to try to add a little tidbit of things that are happening in the news that we don't need a whole episode on but we just wanted to touch on and say, "Hey, here's the thing." This is our first one, so we'll see how it goes. The SCOTUS just came back with a couple of interesting decisions about vaccine mandates. I wondered if you could touch on those in follow-up because it seems to me like these are perfectly in line with what you've been saying quite a while about the powers and lack of powers of various agencies.

John Aughenbaugh: Yeah. In part, we're talking about two cases that were challenges to buy an administration emergency, if you will, regulations in response to COVID-19. The first regulation came from OSHA, and Nia, here's a little quiz, "OSHA stands for?"

Nia Rodgers: Oh my goodness. Something hazard. I know What OSHA does but I can't occupational safety and.

John Aughenbaugh: Health Administration.

Nia Rodgers: Health Thank you.

John Aughenbaugh: Yes.

Nia Rodgers: I know what they do is they basically keep the workplace safe for workers.

John Aughenbaugh: Yes.

Nia Rodgers: Your boss can't just have 700 pound weights hanging over you while you're teaching by a thread. Because the chances of that ending badly for you as a worker are pretty high. If Chair Jason Donald was thinking about doing that, he should have thought about doing that. That's basically OSHA's idea, is how do we work with safety? They're the ones who do things like you have to have guards on saws, so the people's hands don't just slip into a saw and get chopped off and things like that. That's OSHA's general purview; isn't it?

John Aughenbaugh: Yes. OSHA was created in 1970s. It's an agency, as you pointed out, whose purpose is to make sure that workplaces across the country are safe for workers. OSHA issued an emergency regulation at the request of the Biden administration, that would require any workplace with over 100 workers to either have their workers get vaccinated against COVID-19 or to under go weekly testing to make sure that they did not have COVID. The main reason for this was the Biden administration was concerned that adult Americans, were not getting vaccinated at a rate that would stem the tide of COVID-19. The name of the case is the National Federation of the Independent Businesses versus the Department of Labor.

Nia Rodgers: Thank you. I was just about to ask you what the name of the case was.

John Aughenbaugh: OSHA is a unit or an agency within the Department of Labor. Now, the case gets to the United States Supreme Court after a lower court. This is a little convoluted. First, the Fifth Circuit Court of Appeals, which covers the states of Texas, Louisiana, and Alabama, issued a stay saying that the rule could not go into effect because more than likely, OSHA did not have the legal authority to issue the regulation. There were so many challenges to this regulation that the case ends up being transferred in a lottery system to the Sixth Circuit Court of Appeals, which would handle all of the litigation in the country against this regulation because in addition to a number of business interest groups, 27 States challenged the regulation. The Sixth Circuit Court of Appeals terminated the stay. Thus the National Federation of Independent Businesses brought an emergency request of the United States Supreme Court. The court never decided the case on its merits. What the court decided was to whether or not to re-issue the stay, and the court in a 6-3 vote said, yes, the stay will be re-issued. The regulation will not go into effect. It's up to the Biden administration now to decide whether or not they want to go through the rather time-consuming litigation at the lower court level, only to have it appealed to get to the Supreme Court.

Nia Rodgers: Got you. But at that point, the Supreme Court we'd be looking for whether there were mistakes made in the case?

John Aughenbaugh: That's right. Yes.

Nia Rodgers: They're never going to be adjudicating the case because that's not what Supreme Court does. The supreme court looks for mistakes made.

John Aughenbaugh: By the lower courts.

Nia Rodgers: In the application of the law, not in the actual emotional feelings of the case.

John Aughenbaugh: In the opinion issued by the majority in this case, the majority made it very clear that more than likely OSHA would lose if it was litigated at the lower courts.

Nia Rodgers: Right.

John Aughenbaugh: I mean, that's part of the determination of whether or not a court issues a stay against the government, doing something is with the government loops.

Nia Rodgers: I see.

John Aughenbaugh: In the court majority, and again, the vote was 6-3, and then it actually came down on ideological grounds, if you will. The six Justices appointed by Republican presidents voted to re-issue the stay.

Nia Rodgers: Right.

John Aughenbaugh: The three liberal Justices. Those appointed by Democratic presidents, felt as though OSHA had the authority. Basically Nia, the court majority came out and said, "OSHA did not have the authority to issue this regulation."

Nia Rodgers: If Congress had intended for OSHA to be in charge of public health, they would have put that in OSHA's authorizing legislation.

John Aughenbaugh: Yes. Authorizing legislation.

Nia Rodgers: Thank you.

John Aughenbaugh: What the court focused on was, OSHA has the authority to affect workplace conditions. COVID-19 affects Americans not only at work but in their private lives, at grocery stores, at churches, etc. As a concurring opinion written by Gorsuch points out, historically which level of government Nia, regulates for public health and safety?

Nia Rodgers: The state.

John Aughenbaugh: The state.

Nia Rodgers: Not the Federal.

John Aughenbaugh: Not the federal government. Part of the difficulty the Biden administration had how to go ahead and craft a regulation that would capture a large number of Americans who are unwilling to get vaccinated. But the problem is, many of these Americans don't work at employers with over 100 people. Do you understand what I'm saying? This was a regulation.

Nia Rodgers: They would not have solved the problems.

John Aughenbaugh: Would not have captured a whole bunch of Americans who either A, don't work at employers with a large number of employees or B, many large employers were allowing their workers to work how?

Nia Rodgers: Remotely.

John Aughenbaugh: Remotely. I mean, you think about our experience Nia, for roughly the first year and a half of the pandemic.

Nia Rodgers: Well, and things like Google where they've been told to stay away.

John Aughenbaugh: Yes.

Nia Rodgers: Don't come back to work. We're not Microsoft. Lots of huge employers have said, we just assume you don't come back to our physical buildings. It just kills me to say this out loud but I actually agree with the Supreme's on this. The reason it kills me to say that is because I understand what the Biden administration is trying to do. They are trying to stop a pandemic and they are trying to use every means to do that. I get it, and I want it to stop too. I wanted it to stop about a year and a half ago. I'm ready but by the same token, it's not OSHA's job. That opens a door into other medical things that you could say, well, this affects people who are also in the workplace. So we should screen everyone for TB, we should force everyone to have Tetanus shot, we should blah, blah, blah, blah, blah. I don't think that that's Osha's job. I hate to agree with them but I actually agree with that.

John Aughenbaugh: Yeah. It's much like our previous discussion about the eviction moratorium, when the Biden administration last year and they attempted to allow the Centers for Disease Control to issue or to continue an eviction moratoriu when quite clearly, Congress never gave the Centers for Disease Control the authority to affect housing.

Nia Rodgers: Otherwise, they wouldn't have had the Department of Housing and Human Services.

John Aughenbaugh: Yeah.

Nia Rodgers: They wouldn't have needed that.

John Aughenbaugh: There is a larger issue here. The Supreme Court's basically saying to the United States Congress, you guys have perhaps the authority to do this, but you got to get off your duffs, and actually work together if this is a priority.

Nia Rodgers: You can fix this. There is a known solution to this, which is that you go back, you do the work, and you change OSHA's founding document.

John Aughenbaugh: Authorizing legislation allows us to do.

Nia Rodgers: Thank you.

John Aughenbaugh: But what can't happen is the Executive Branch unilaterally deciding to do something when Congress has not given it the explicit authority to do it.

Nia Rodgers: But in the second case.

John Aughenbaugh: The second case.

Nia Rodgers: I agree with him on that too. I'm like, now, I don't know how to feel. Because now the Supreme Court is starting to hypnotize me into believing that they know what they're doing and I'm not entirely certain I'm comfortable with that. Please tell us the second case because it's Biden V.

John Aughenbaugh: Missouri.

Nia Rodgers: Missouri.

John Aughenbaugh: The Biden administration issued a regulation that requires basically all healthcare workers or nearly all healthcare workers at facilities that receive Medicare and Medicaid program funding, to be fully vaccinated against COVID-19, unless they have unacceptable medical or religious exemption. This was a regulation issued by the Department of Health and Human Services, which actually runs both the Medicare and Medicaid programs. This was a regulation that was issued in November, roughly about the same time as OSHA issued its regulation. Once again, two lower federal courts, one in Missouri, and then one in Louisiana issued stays against the regulations being implemented. The vote in this case was five to four. The supreme court rescinded the stay. They rescinded the stay. They said that the Department of Health and Human Services has the authority to issue this regulation, and the majority focused on the fact that Congress in HHS, Health and Human Services authorizing statute, gave it the explicit authority to qualify how Medicare and Medicaid moneys were being spent.

Nia Rodgers: What constitutes proper running of those facilities to receive those monies? Where this took me was, when the Department of Transportation in the '70s made everybody change speed limits in various states where there were no speed limits or the speed limit was 986 or whatever.

John Aughenbaugh: You're referring to South Dakota versus Dole in 1984. Yes.

Nia Rodgers: When they were saying, you can't do that, and the federal government said, yahuh, and said to the Supreme Court. They said sure they can, they have the power of the purse. You don't have to take their money if you don't want to do the thing, but if you want their money, you got to do the thing. Whatever the thing is, they're asking you to do, so in this instance, it makes sense to me that, your facility does not have to take Medicare money. You can choose not to take Medicare money and then your staff doesn't have to be vaccinated. But if you choose to take our money, we get to build the standard of what it is to get that money from us. That made total sense to me. Again, I don't know how I feel now because now I agree with both of these rulings. Basically it makes me want to lay down and put a cold cloth on my forehead.

John Aughenbaugh: The vote in this case was five to four. It was the three liberals plus Chief Justice Roberts and Justice Kavanaugh, and the majority, and the other four conservatives were in dissent, and Clarence Thomas wrote the descending opinion in this case. Again, Clarence Thomas in his dissent, basically went ahead and said that he was unconvinced, that the Biden administration clearly explained where HHS had such authority. Again, what you're picking up here, if there's a theme between both of these cases is that a significant number of justices are basically placing the onus on Congress to clearly state what agencies in the executive branch can and cannot do even in emergencies.

Nia Rodgers: If you want to grant them emergency powers, you as the Congress have the ability to do that.

John Aughenbaugh: They come together and pass legislation.

Nia Rodgers: They grant emergency powers, whatever institution you want to grant it to for however long for whatever purpose. You know how I know that works, because USA Patriot. You can come together and make a time limit.

John Aughenbaugh: Or even in this pandemic, Nina. Once with the Trump administration and once with the Biden administration, United States Congress came together and awarded a whole bunch of money to a whole bunch of Americans to be able to respond to the economic repercussions of the pandemic. As far as the Supreme Court is concerned is, if you can do it in that instance, well, if you want the federal government, and again, I had to explain this in a couple of press interviews. The federal government, because we're talking about interstate commerce, could pass such legislation. You're talking about 10 million health workers who might be impacted by this HHS regulation. The OSHA regulation would affect, what was it? Two-thirds of adult workers in the United States. This easily falls under Congress's commerce clause authority. But it forces Congress to act. The Biden administration got a split decision from the United States Supreme Court this week. OSHA regulation cannot be implemented, but the HHS regulation can be.

Nia Rodgers: The Supreme Court give us, and the Supreme take it away.

John Aughenbaugh: Yes.

Nia Rodgers: Thanks, Augie.

John Aughenbaugh: Thank you, Nia.