In yesterday’s post, I gave a summary of what I thought were some of the best, most interesting, or surprising points made in the oral arguments on the OSHA and CMS mandates. I have thought about it all some more.
In my posts, I usually give predictions of how I think a court will rule in a case. Today, I am going to give my personal opinion of what the Supremes should do, and based on the oral arguments, what I think the Supremes will do.
The Current Status
As of now, the OSHA mandate is initially scheduled to go into effect tomorrow, starting mildly enough with a mask mandate, followed by employers’ choice of a vaccine mandate or a mask and testing mandate, next month.
I have previously said that this mandate will not go into effect. I am going to stick with that prediction. That means, I expect an administrative stay to be issued today or early tomorrow morning.
As to the CMS vaccine mandate. That mandate is currently enjoined by a district court and a stay of the injunction was denied by the Fifth Circuit. Meaning, the CMS vaccine mandate is not in effect, and will not go into effect unless 5 justices vote to stay the district court’s injunction.
I don’t expect 5 justices to do that today or ever.
Here is my position:
These two mandates (and the others not presently before the court like the contractors’ mandate and the head start mandate) are the direct result of President’s Biden’s decision that he is going to force as many people as possible to get vaccinated with all the powers that he can muster in the federal government. That has resulted in federal agencies exercising unprecedented power over people, businesses and health care facilities, and all this has been done on essentially an emergency basis, without normal and regular administrative due process the hallmark of which is notice and an opportunity to be heard.
The continued duration of the pandemic is unknown. After two years, the country cannot keep living under an emergency, and it cannot continue where one elected national politician can make these decisions without regular administrative process and without input from the legislature. And that is even assuming that the federal government has the power to compel over one hundred million employees and a substantial portion of the health care workers in this country (if not the majority) to take a vaccine. States and local governments might well have that power, but the Supreme Court should not and will not grant President Biden (or any president) that power; not two years into what appears to be a continuing pandemic, and irrespective of what some justices think is the record about vaccine safety and efficacy, and recent headlines. That is just too much power in one person, and I think six of the Supremes are going to say just that.
Accordingly, I think the Supremes should not and will not allow the OSHA mandate to go into effect, meaning it will vacate the 6th Circuit’s opinion which allowed the OSHA mandate to go into effect. Meaning it will not go into effect.
On the CMS mandate, it’s a tougher issue because of the direct patient safety concern. However, the core principles are the same. It is just too much power for one person to exercise in a country of 330 million people with no regular administrative process, no specific input from the legislature, and considering the fact that many different states have different determinations on the analysis of public health risks vs. rewards.
We do not live in a dictatorship (yet). I think decisions about vaccine mandates should be left up to the states, which is how such decisions have been made historically. I think six of the Supremes will deny President Biden to power to order millions of health care workers throughout the county to be vaccinated. As the CMS mandate is currently stayed, the majority opinion will be to continue the stay in place pending the final judgment of the district court after the trial of the action, (if the government decides to continue with the case).
That is how I see it.
Rick Jaffe, Esq.