Opinion: The alarming prospect raised by the Supreme Court rulings

The court was divided over the two policies involved. It found that the first policy, set by the Occupational Safety and Health Association (OSHA) that requires large companies to ensure their employees are vaccinated or tested weekly, cannot take effect. It found the second policy, based on guidance from the Secretary of Health and Human Services (HHS) that requires workers in health care facilities participating in federal Medicare and Medicaid programs to be vaccinated, could go into effect.

Ostensibly, the Court’s reasoning has stuck closely to the question of whether the relevant laws provide the agencies with the authority to make the rules in question. By a 6-3 vote, with the court’s liberal wing of Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan opposing and the ultra-conservative wing of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, the court halted the OSHA vaccine — or — the test taking effect, stating that the Occupational Safety and Health Administration (OSHA) has exceeded the powers and duties granted to the agency by Congress. The court noted that OSHA’s authority is to enforce workplace safety standards – not broad public health measures – and that Covid-19 cannot be specifically defined as an occupational hazard.
In the other case, by a 5-4 vote, with Justices Thomas Alito, Gorsuch and Amy Connie Barrett dissenting, the court allowed the HHS vaccine requirement to be enforced for health care facilities. In this case, the court found that HHS had authority for the purpose of ensuring patients’ health – and that the relevant facts demonstrated the significant risk to patients of unvaccinated workers. Although HHS prevailed, the fact that four dissenting judges were dissenting is ominous, as this should have been an easy win for the agency’s regulatory authority.

Despite the different findings, these court rulings have shown great disagreement among judges as to who should decide these kinds of questions, which does not bode well for those people—including the court’s three-judge liberal wing—who are in the business of letting important decisions go. , such as vaccine requirements, for experts at federal agencies.

There are fewer defenders of the agency’s important authority than those in court who seem to believe that either Congress or the states should take precedence in regulating areas specifically designated for federal agencies for this purpose. This is concerning when one considers the number of aspects of our lives — from our financial system to the environment, from communications to transportation to the food we eat — that are shaped by the regulatory work of federal agencies.

So, what does this mean for the future of the federal agency’s regulatory authority?

On the one hand, the three most conservative justices — Thomas, Alito and Gorsuch — had to write a concurring opinion in the OSHA case to say that if the court found that the OSHA had the legal authority to enforce its policy, it likely would have constituted an unconstitutional grant Legislative power because of its imposition on the sovereignty of the state. The other three conservative justices were clearly not prepared for such an obvious and unnecessary display of their view that states’ desires should trump agency powers in this situation.

On the other hand, although the majority of justices were not willing to go that far in the OHS case, there were six votes to take decision-making power out of the agency’s hands: The majority opinion said Congress had the power, the defectors said the Occupational Safety Administration and Occupational Health Organization (OSHA), those in the agreement suggested leaving it up to the states.

This is a debate we haven’t had yet, and if I’m reading (and preparing) the tea leaves and judges correctly, setting federal agency rules has a dangerous road ahead.


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