What Happened to the Biden-era Vaccine Mandates?
On January 13, 2022, the Supreme Court of the United States ruled on two different Biden-era vaccine mandates. The two regulations required all employees of the Department of Health and Human Services and businesses larger than 100 workers to be vaccinated or tested weekly. If sustained, the policies would continue to affect upward of 94 million Americans—more than a quarter of the country’s population. The two nationwide mandates were met with criticism in relation to body autonomy and personal health, leading up to the legal challenges that ended with decisions in the “Marble Palace.” The decisions will undoubtedly have an effect on the life of Americans, in the present and in the future.
The first case that was ruled on, Biden v. Missouri (2022), pertained to the regulation enacted by Xavier Becerra, Secretary of the HHS. The HHS oversees the Centers for Medicare & Medicaid Services, and in November 2021, Becerra ruled that in order to receive funding, all staff employed by HHS facilities—about 10 million Americans—must be vaccinated against COVID-19. The secretary believes that vaccinations as a form of protection for both its employees and patients would achieve this goal, with HHS rightfully arguing in a lower court argument that vaccine neglect is the “very opposite of efficient and effective administration for a facility that is supposed to make people well.”
In the 5–4 majority decision—with Justices Roberts, Breyer, Sotomayor, Kagan, and Kavanaugh joining—the Court found that it was within the purview of HHS to enforce public health standards for its employees, as its duty is to protect patients’ health and safety. Another compelling argument included the common requirement that already precludes becoming a health worker in America: vaccination documents for “hepatitis B, influenza, measles, mumps, and rubella,” among others. Health workers can also be mandated to wear surgical masks and gloves as a function of working in the field. This all stems from HHS being granted their powers from Congress as an executive branch agency. Since it is the very job of HHS to pass “requirements as [it] finds necessary in the interest of the health and safety of individuals,” as per Congress’ words, such a regulation was likely to be ruled constitutional.
The dissenters—Justices Thomas, Alito, Barrett, and Gorsuch—point out the power being forced on citizens from an unelected agency, the lack of proof from the government that such a broad public health power was actually granted, and the irreversibility of vaccines as reasons for dissenting. Another legal perspective is the legality of contract changes. Employees are only subject to their original contracts, and if such a contract does not include language involving the need to vaccinate for future viruses, then this raises questions regarding breaches of contract. Although there are caveats that could be encompassed within flexibility clauses—clauses that allow employers to change terms of employment every so often as they see fit—these changes must be reasonable given the implicit trust of signing such a contract. Ultimately, although there may be some uncertainty about just how clear congressionally-delegated powers are, the decision remains moving forward.
The second case decided on the same day, NFIB v. OSHA (2022), regarded the regulation that the Occupational Safety and Health Administration (OSHA) implemented. This regulation would have required all businesses with 100 or more employees to terminate those who refuse to get vaccinated for COVID-19 or test weekly, sometimes on the employee’s own dollar. This regulation affected nearly 84 million workers. In a brief and matter-of-fact decision with a majority of 6–3 along partisan lines, the Court explained that OSHA did not have the power to regulate public health matters, for Congress did not grant them this power as they had with HHS, nor is it their expertise. Quite plainly, as the agency’s name indicates, OSHA handles matters of occupational safety and occupational health. The Court details that the threat of COVID-19 is simply a day-to-day life concern like crime or air pollution, not one unique to the workplace, and so OSHA has no authority to manage this aspect of their employees’ lives. The Court admitted that not even Congress currently believes in the idea of a widespread vaccine mandate, citing the Senate’s 52–48 vote on S.J.Res 29 providing congressional disapproval of this very standard.
What do these two case decisions mean for the future? Given the information from both cases, a congressional battle could potentially arise from the proposal to revisit and rewrite the powers of government agencies. Following the largely partisan slant of the Supreme Court’s decisions, Republicans would likely attempt to block attempts made by Democrats toward revising OSHA’s (and other federal agencies’) powers allowing public health regulatory measures to be encompassed within their official capacities with specificity. Though this may not take place immediately, should another pandemic like the novel coronavirus ever emerge, the option would resurface.
Largely, these decisions are to be taken as plainly as the majority justices had ruled. Given the rulings, vaccine mandates are measures for enforcing public health, and jurisdiction over these measures should be driven by public health experts. These two landmark cases will guide future administrations toward a new direction of improving public health. Whether that involves granting new powers to executive branch agencies or strengthening the message around vaccine importance is to be determined.
Connor Wayne Kraska is a Junior at Brown University studying Economics and International and Public Affairs. He currently serves as a Staff Writer for the Brown Undergraduate Law Review and can be contacted at connor_kraska@brown.edu.