I listened to the oral argument yesterday on the two Biden mandates, and that would be the OSHA mandate for employers with 100 or more employees to mandate the vaccine or testing and masking for those choosing not to vaccinate, and the CMS vaccine mandate covering health care facilities that receive Medicare payments or Medicaid. I found it extremely interesting for many reasons, one of them being it was the first time the Supremes had an oral argument on a vaccine mandate in a very long time. (The last one being Zucht in the early 1920’s). Of course, we have a few recent non-decisions from the Supremes on a mandate issue, most notable the Supreme’s refusal to take up whether the states have to provide a religious exemption, which carried a dissenting opinion written by Justice Gorsuch for him and his two hard-right brethren). And we have had oral arguments and opinions on the closure orders covering religious services. But this was the first one on a vaccine mandate.

Before getting into substance, let me start with what is both symbolic and emblematic of the polarization manifest in the times we live in. Seven justices came into the chambers masked. Justice Gorsuch was unmasked. I think that was a message from a right-wing Colorado guy to like-minded people. Without explanation, Justice Sotomayor attended the arguments from her chambers. She sits next to Gorsuch. I think these three facts are related. My guess is that she didn’t want to take the risk of sitting next to an unmasked Gorsuch. It wouldn’t shock me if the two justices have different masking practices in their chambers. And that is emblematic of the times we live in.

The least surprising part of the arguments

To the surprise of no one, the three liberal justices were consistent in their defense of both mandates. Each of them made excellent public health and statutory points. However, the most impactful point of the entire oral argument was made by Justice Breyer who repeatedly stated since the mandates were proposed, daily cases went from 75k to 750k. He expressed his incredulity that those opposing the mandate actually thought that a stay of the OSHA mandate could possibly be in the public interest. Justice Kagan made an equally forceful point in the CMS case that the most important infectious disease measure (which everyone conceded that CMS can impose) was that Medicare and Medicare providers shouldn’t kill their patients by giving them COVID. Their questions paralleled the approach they (and the Chief Justice) took in the first South Pentacostal case, which upheld the different treatment of attending religious services versus going to the hardware store. That approach is practical and protects the public based on consensus science as articulated by public health officials. (And I know that most of you reading this post do not agree with this view)

Therefore, I think that the three liberals will vote to uphold both mandates, which procedurally means that they will vote to affirm the 6th Circuit’s vacature of the 5th’s stay /affirmance of the preliminary injunction of the OSHA mandate, and they will vote to stay the district court’s preliminary injunction of the CMS vaccine mandate which was affirmed by the 5th Circuit. Note that the 5th Circuit, which is one of the most conservative circuits in the country, and the one that overturned multiple district court injunctions against the most recent and previous Texas abortion laws is at the center of both of these mandates.

The most heartening comments if you are against vaccines or against mandates

This to me is not a close case. Justice Alito’s comments, later echoed by other conservatives, that vaccines have risks. He got some pushback by the government and they went back and forth: ‘Vaccines have risks.’ ‘but they are very small and infinitesimal compared to the benefits ‘but they still have risks.’ and on and on it went.

During both oral arguments, Justice Alito was the most consistently anti-mandate of all the six right-wing justices, by a country mile. He did nothing to hide his opinions that he was against both mandates. I think he also even used some of the anti-vax/mandate language about this being a medical procedure with risks. I suspect people against these and other mandates throughout the country were very gratified to hear his statement/questioning.

The other two hard-right justices were almost as comforting to the mandate opponents. Justice Thomas seemed to try to make the point that unvaccinated young workers were less at risk than older vaccinated workers. Gorsuch was consistent in his challenges to the OSHA mandate to the glee of mandate opponents. They made many technical and doctrinaire jurisprudential points about the division of responsibilities between the federal and state government. In my prior posts, I repeatedly said that this was going to be the central issue in the case and why I thought the mandates would be reversed. Nothing in the oral arguments changed my mind about this, at least regarding the OSHA mandate.

The consensus of the news agencies reporting on the argument is that the Supremes “stand poised” to stop the OSHA mandate. I think that is a fair assessment.

The most interesting comment/line or inquiry running through both cases

That’s an easy one: The Chief addressed the elephant in the room, which is that all these mandates (the two before the court, plus the government contractors’ cases, and add to that, the Head Start mandate) seem to be “workarounds” to the fact that the federal government does not have the “police power” to authorize vaccine mandates. Historically (and under the little thing called the 10th Amendment) police power to protect the public has been the province of the state and local governments.

There was some perhaps some half-serious talk about whether the president could or did order administrative agencies to figure out ways to impose vaccine mandates within their agencies’ purview. But the point was made; Biden made it known that he wanted any agency that could plausibly impose a vaccine mandate on those individuals or entities they oversee (or distribute money to) to do so, ASAP, and emphasis on the ASAP. All the talk about the workaround was surely music to the ears of those against the mandate. Any day a judge talks about a government official’s attempt to “workaround” some kind of technical roadblock to government action, is a good day to those challenging the “workaround.” In short, “workaround” is a loaded term, and once you convinced the judge to use that term, you’re most of the way home.

The other two right wing justices (Barrett and Kavanaugh) made many good technical points.

Justice Barrett was bothered by the fact that the normal rulemaking process that provides for “notice and comment” was not followed because it was an emergency order. That is a very fair point and should be of concern to anyone who has concerns about governmental encroachment on the rights of individuals, in theory at least. In practice, however, it’s meaningless. My experience is that in rulemaking, federal agencies do what they want to do while giving lipservice to public comments, or professional comments that do not adhere to the narrative of the establishment commenters and recognized authorities.

The most surprising comment (to me)

I was floored when Justice Kavanaugh asked the state attorney general defending the preliminary injunction against the CMS vaccine mandate why there were no amici briefs from health care providers supporting the preliminary injunction. I was even more shocked when he said that most health care providers are in favor of the vaccine mandate! I think that was echoed by other justices as well.

And that gets to the core issue. Right-wing or left-wing, all of the justices are vaccinated and boosted and that says something. It might be a stretch, but what it says to me is that not even the right-wing justices would want to be treated by an unvaccinated doctor. And if that is the case, then I can see split decisions in these cases. This might turn out to be the decisive difference in these two cases, but there are other differences that are important to acknowledge.

Differences between the two cases

There are two big differences in the cases. The most important one is a point repeatedly made by the liberals in the OSHA case: The OSHA case is not a vaccine mandate. Employers have the choice of having a vaccine mandate or a testing and masking requirement for the unvaccinated.
That obviously weighs in favor of upholding the OSHA mandate versus the CMS mandate which is a full-on vaccine mandate (other than limited medical exemptions and possibly religious exemptions, except that we don’t know yet whether religious exemptions are constitutionally required).

On the CMS side of things, the biggest difference is that the CMS mandate derives from the spending powers of the federal government. Most of the time, the federal government’s restrictions a/k/a strings attached to the money it gives to state and private entities is upheld. The OSHA mandate is a direct mandate on employers and not tied to the federal government’s largesse. That was a very important distinction according to the questions of the liberals (or at least the two female liberals).

Justice Breyer was swinging for the fences all day with his 750k per day cases and how could it be in the public’s interest to stop what everyone says are the best ways to save lives.

So, where does that leave us?

On the OSHA mandate, odds are that a 6-3 majority will reverse the 6th Circuit which allowed the mandate to go into effect (and the 6th had reversed the 5th Circuit’s upholding the preliminary injunction stopping the mandate, if I’m not confusing myself). Because the OSHA mandate goes into effect on Monday, I would expect an interim administrative stay to be issued to allow time for the writing of the opinions, or (and I’m not sure if the Supreme’s do this) enter an order vacating the 6th Circuit’s decision and result with a written decision to follow.

On the CMS mandate, what I am sure of is that the three liberals and hard right justices will be on opposite sides. I’m just not sure which will be in the majority. I suspect it will be 6-3 one way or the other. What I got from the oral argument is that there could be split decisions, which is something I had previously not thought likely or possible. We’ll know soon enough. Internally, I think the decision point will be whether the Chief and the two not completely super hard right justices (Kavanaugh and Barrett) would want to be treated by an unvaccinated doctor. The answer to that question could outweigh their conservative political and doctrinaire leansing which they share with the three hard-right justices.

Finally, if the Supremes do stay the preliminary injunction against the CMS mandated – meaning if the vaccine mandate for health care workers is allowed to go into effect – well, that would obviously not be good news for physicians who want to remain unvaccinated, and it would be a very bad sign for other vaccine mandate cases challenging state local or private vaccine mandates for health care workers that are in the litigation pipeline.

Rick Jaffe, Esq.