Reflecting the importance of mandatory vaccines for COVID-19, the U.S. Supreme Court recently held an emergency hearing for two cases and expeditiously issued opinions.
My piece in the News-Press on Jan. 23 (“OSHA: Law or politics?”) covered the high court’s holding that Occupational Safety and Health Administration lacked the authority to require a vaccination mandate for employees of all employers of more than 100 employees.
In the other case, the court upheld the mandate of the Department of Health and Human Services for vaccinations of the nation’s healthcare workers. Why the difference?
Since his first day in office, President Biden has included the race and gender of his nominees for his “most diverse cabinet ever,” including announcing former Xavier Becerra as the first Latino Secretary of Health and Human Services and Chiquita Brooks-LaSure as the first black to head the Center for Medical Services, which is responsible Medicare and Medicaid.
Mr. Becerra, after being appointed to replace Kamala Harris as the attorney general of California, filed over 100 lawsuits against the previous administration that were mostly defeated by the then Secretary Alex Michael Azar, who previously was a pharmaceutical executive and was general counsel of HHS.
Federal agencies are required to publish their proposed regulations and consider the responses from the public. In the vaccine cases, OSHA failed to comply, alleging the agency should use the “emergency” exception.
Two district courts said about CMS’s attempt to do the same by holding “CMS fatally undercutting that justification for not complying with seeking public input because of its own delays” and that CMS argued against its own propose requirements by stating “the uncertainty and rapid nature of the current pandemic” and issued injunctions preventing the mandate.
CMS’ appeal led to Biden v. Missouri, 595 US (page number to be filled in later) 2022, a per curiam holding, meaning no justices signed it.
The liberal justices Elena Kagan, Stephen Breyer and Sonia Sotomayor were joined by Chief Justice John Roberts and his fellow conservative Justice Brett Kavanaugh in ruling 5-4 to uphold the vaccine mandate for healthcare workers.
The court did not mention the lack of congressional or public input while finding the funding through CMS gave it the authority to attach conditions on the funding. However, without citing any specific grants of authority for vaccines, the opinion rambled through different regulations for many of the 15 different parts of the industry, including hospitals, nursing homes, ambulatory services, surgical centers, hospices, rehabilitation facilities, and more, before concluding that this cumulation of unrelated regulations establishes the authority for a vaccine mandate the industry.
Justices Samuel Alito, Amy Coney Barrett and Neil Gorsuch joined the dissent written by Justice Clarence Thomas that held “These cases are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.”
The dissent continued, “If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”
The “hodge-podge” of unrelated regulations was insufficient to show CMS had authority for vaccines. These examples for hospitals included “the amount of time after admission within which a hospital patient must be examined and by whom, the tasks that may be delegated by a physician assistant or nurse practitioner; and surveillance, prevention, and control of infectious diseases.”
For healthcare workers they included “the number of hours dieticians must be supervised; personnel for radiologic equipment; and infection prevention and control guidelines.”
The dissent continued, “Vaccine mandates also fall squarely within state’s police power” (Zuch v. King, 260 U.S. 174 (1922). The vaccine mandates for hepatitis B, influenza, measles, mumps, and rubella, were all required by states’ actions. In addition, the mandate for all 15 parts of the healthcare industry was overly broad as CMS does not provide funding for five parts of the industry.
Subsequent to the Supreme Court’s holding, CMS ruled that the estimated 10 million healthcare workers in 75,000 facilities must be fully vaccinated no later than Feb. 28. There is an exception for those with medical or religious purposes.
I think something as serious as conditioning the employment of healthcare employees on their getting a vaccine too important to be done without any input from the people or their elected representatives and not by a few bureaucrats “in the still of the night” with all the transparency of a D.C. basement.
The District Court agreed by holding that the administration through HHS avoided public input by asserting it was an emergency based on their own delays, a pattern as OSHA also used the same technique to avoid the requirement of public input.
The actions of the CMS illustrate the risks of having federal agencies involved in allocating funding being subject to the Golden Rule. This rule was first identified in 1604 by Anglicans Charles Gordon and Timothy Jackson as “he who has the gold makes the rules.’
In political terms,it means using federal funding to assume federal control of activities.
Current examples include the feds in September grabbing control of the treatments for COVID in order to add racial guidelines to their distributions along with reducing the amounts to Republican states such as Florida. The Build Back Better bill includes adding voting, child care and education to their control under the Golden rule where they can insert racial guidelines as they did in the treatments for COVID.
We taxpayers have the gold. Don’t vote to send it to the feds.
Brent E Zepke is an attorney, arbitrator and author who lives in Santa Barbara. Formerly he taught at six universities and numerous professional conferences. He is the author of six books: One Heart-Two Lives, Legal Guide to Human Resources, Business Statistics, Labor Law, Products and the Consumer, and Law for Non-Lawyers.