The Supremes have just rejected the Biden OSHA mandate which would have forced employers of around 84.2 million employees to either impose a vaccine mandate or a testing and masking alternative. It was a predictable 6-3 decision with the liberal judges in the minority. It was a per curium (unsigned) majority opinion. Justice Breyer as the senior judge in dissent assigned the dissenting opinion to himself, to which the other two liberal justices joined. Here are the opinions. 21a244_hgci.

This, like the CMS cases, are about whether federal administrative agencies, which are part of the executive branch of government, have the statutory power to enact this kind of broad workplace rule. If there is one sentence in the majority opinion which encapsulates the reasoning of the six conservative justices, this is it: OSHA “empowers the Secretary to set workplace safety standards, not broad public health measures.” The point is that the majority distinguished between dangers in the workplace from dangers all people face because of the public health crises. That seems a little mechanical to me, meaning, you can choose to say home in your free time, but you have to show up at work. But that’s the way the majority saw it. One reason for that was because the majority stressed that, unlike regular workplace safety precautions, a vaccine can’t be undone and covers employees after they leave work.

What does this mean?

The majority vacated the 6th Circuit’s decision to vacate the 5Th Circuit’s stay of the OSHA mandate. The OSHA mandate is stayed until these issues are litigated in the appellate courts on the various appeals of either the granting or denial of preliminary injunctions against the OSHA mandate. I wouldn’t expect any different result after that appeal process. I would expect that the OSHA mandate in its current form will never go into effect.

The CMS case

On a 5-4 vote, the Supreme Court stayed the preliminary injunction stopping the CMS rule requiring 10,000,000 health care workers to be vaccinated (or have an approved medical or religious exemption). The stay of the injunction (stopping enforcement of the rule) stays in effect. until the government’s appeal of the preliminary injunction gets reviewed by the Supreme Court after the government finishes its appeal to the Fifth Circuit. Like the OSHA case, this case came up on the Supreme’s shadow/rocket docket on a stay of a lower court decision. There has yet to be a full appeal of the district court’s preliminary injunction. However, like in the OSHA case, (but opposite), the CMS vaccine mandate goes into effect unless and until the Supreme Court denies review (certiorari) or accepts the case and affirms the preliminary injunction on the merits. Here are the opinions: 21a240_d18e

Conservative justice Kavanaugh joined the chief judge to form the majority. The Chief’s vote is consistent with his votes in the cases of the religious service (the two South Pentacoastal cases and the Cuomo case).

My initial reaction after hearing the oral argument was that I thought a split decision like we got was possible, but in my most recent post, I felt that the conservatives would stick together, regardless of what the Chief did. Kavanaugh turned out the be the difference. I’m wondering if he is going to end up being the new fulcrum point on the Supremes, like Kennedy and Sandra Day O’Conner used to be.

What do these cases mean for the other two federal mandates (federal contractors and Head Start)? I’m sure it means something big, but I haven’t quite figured it out yet.

More later, and I’m starting my YouTube channel with these decisions very, very soon, live streaming with questions if I can figure it all out quickly. So stay tuned, and I’ll do a quick update as to when and the link as soon as I figure it out.

Rick Jaffe, Esq.