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OSHA's Vaccine Mandate: The Answer to the Major Question Is 'No'

By Steven Ellison, Esq. on January 18, 2022 2:47 PM

On January 13, the U.S. Supreme Court ruled on the Occupational Safety and Health Administration's (OSHA)'s vaccine mandate. We anticipated the quick ruling following oral arguments, which the court held on January 7 in an unusual special session.

To Jab or Not To Jab?

So jab or no jab, as it were?

It's been widely reported that the court struck down the mandate. That may be the ultimate practical effect, but that's not quite what happened. To understand that, we need to go into the details of where things currently stand in the judicial proceedings. Lawyers call this the "procedural posture."

History of the Court Cases

Let's summarize. On November 9, OSHA issued the vaccine mandate in the form of an emergency temporary standard. Almost immediately, dozens of parties (including states, businesses, trade groups, and non-profit organizations) challenged the mandate in federal courts all across the country. Those parties asked the federal appellate circuit courts to immediately suspend — that is, stay — the mandate until the courts had the opportunity to fully consider and decide whether it was legal.

Fifth Circuit Stays Mandate

One of those courts, the U.S. Court of Appeals for the Fifth Circuit, stayed the mandate. In a 3-0 decision, that court decided for a bunch of reasons that the mandate was likely illegal. That meant that the rule could not go into effect on January 4.

Cases Grouped Before One Court: the Sixth Circuit Denies En Banc Hearing

All of the cases across the country were then grouped together and sent to one court, the Sixth Circuit Court of Appeals, to handle.

The parties challenging the stay asked that all 16 judges on that court hold an "en banc" hearing together. They split 8-8, so no en banc hearing. In an opinion written by the chief judge, eight judges said that to issue the mandate, OSHA needed to have clear legislative support and that Congress didn't give it.

We previously wrote about the major questions doctrine. These eight judges believed the answer to the question was likely "no."

Sixth Circuit Dissolves Stay

Then, the cases got assigned to a panel of three Sixth Circuit judges. In a 2-1 decision, they "dissolved" the Fifth Circuit's stay. That meant that the mandate would go into effect until the courts had the chance to fully consider whether it was legal. The answer to the question, in their view, was likely "yes."

If your head is spinning by now, that's understandable. But there's more. Stick with us.

Supreme Court Steps in and Stays Mandate

The parties who wanted the stay then asked the Supreme Court to step in on an emergency basis. The court agreed to hear the case on January 7 (three days after the mandate already went into effect). Six days later, it issued a ruling staying the mandate for the time being.

6-3 Court Decision

The decision is "per curiam" — in other words, by the whole court — so we don't really know who wrote the opinion. The court did give its reasoning. Without discussing the major questions doctrine in detail, the court determined that it was likely the parties seeking a stay would be able to persuade the lower court, following the submission of evidence, argument, and full consideration, that Congress hadn't "clearly" given OSHA the power to issue such a sweeping regulation. So the answer to the major question in effect was likely "no."

Concurring Opinion

Associate Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito explained their own reasons for supporting a stay in a "concurring opinion." They make it expressly clear that they believe the major questions doctrine exists and applies.

Dissenting Opinion

Associate Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan disagreed. In a "dissenting opinion," they explain that Congress had, in their view, given OSHA broad authority to protect workers from health hazards and that because thousands of people were dying from COVID-19 every day, vaccination is the best way to serve the public interest. They didn't expressly discuss the major questions doctrine.

What Happens to the Cases Now?

Where are the cases now? They go back to the Sixth Circuit for further consideration.

So far, no court has actually held a hearing on the legality of the rule. All of this has been about whether or not it's likely that the rule is legal. That's not to say that the courts haven't already received a lot of evidence and argument, but there has been no final decision yet. We'll see what happens next. The matter of whether the mandate is actually legal could eventually find itself before the Supreme Court again.

What Are We Supposed to Do?

But what does that mean for the rest of us? Right now employers don't have to require vaccination. Many are anyway. And many people are getting vaccinated voluntarily, as recommended by the CDC.

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