On Thursday, the Supreme Court, in a 5–4 decision in the case of, allowed the Department of Health and Human Services to begin implementing a COVID-19-vaccine mandate for workers at health-care facilities that accept Medicare and Medicaid funds. The Justices signing on to the opinion were Stephen Breyer, Elena Kagan, and Sonia Sotomayor—the Court’s liberal nub—plus Brett Kavanaugh and Chief Justice John Roberts. The dissenters were Samuel Alito, Amy Coney Barrett, Neil Gorsuch, and Clarence Thomas. That mandate is expected to cover some ten million workers, and, given the , could hardly come soon enough. (The majority opinion mentions health-care facilities where thirty-five per cent of the workers are unvaccinated.) On the same day, though, in , the Court stayed the implementation of a vaccine-or-test mandate, issued by OSHA, that would have covered an estimated eighty-four million people at companies with more than a hundred employees. The decision was 6–3; this time, Kavanaugh and Roberts switched sides. What, one might ask, was the difference?
It should be noted, first of all, that neither of these decisions stands as a final ruling on the constitutionality of. The basic question in both cases is whether the mandates could go into effect while challenges proceed through the lower courts. (Following the rulings, one can and the other can’t.) But the decisions give some idea of where the Court stands. The Medicare-Medicaid mandate was always seen as being on less contested ground than the OSHA rule—and this outcome was fairly clearly previewed by the Justices’ questions in oral arguments in the cases . An easy answer—maybe too easy—about why that mandate’s chances were better is that its scale is smaller: ten million people is a lot fewer than eighty-four million. Somewhere between those two figures there may have been a total that struck Roberts and Kavanaugh as representing too many people, or too many companies, regulated. And yet constitutionality is not, one would think, strictly a numbers game.
The OSHA rule was, in some respects, more flexible than the Medicare-Medicaid one. Both provide for medical and religious exemptions. Beyond that, the OSHA rule has exemptions for people who work entirely outdoors or remotely, and OSHA also gave companies the option of asking employees to test and mask, as well as an opportunity to show that they had an alternative plan that would be as effective as the mandate. The majority dismissed the exemptions as “largely illusory,” calling the mandate a “blunt instrument.” The three liberal Justices, in their dissent, argued that Congress had quite bluntly given OSHA the power to protect workers, and, last year, had reëmphasized that power by directing OSHA to address issues related to COVID-19 in the American Rescue Plan Act. Extraordinarily, the majority rebuffed that argument, saying that COVID-19 could not generally be seen as a workplace threat but as a “universal risk . . . no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” (The opinion did leave some room for narrower mandates affecting certain kinds of workers, such as “researchers who work with the COVID–19 virus” or those in exceptionally “cramped” environments—an opening that themight now pursue.) The very nature of the pandemic threat, according to that logic, limits the federal government’s ability to act. Barring new, even more specific COVID-19 legislation from Congress, the Justices who oppose the mandates prefer to leave that responsibility to the states. (In that way, the cases, as Elizabeth Kolbert earlier this week, are related to other efforts to upend regulatory frameworks now before the Court.)
The majority’s view of workplace risk raises the question of whether the difference between the two mandates has something to do with whom each is designed to protect. The legal premise of the OSHA mandate is that it is meant to protect workers. As the liberal dissenters wrote, after noting the ways in which COVID-19 can spread in workplaces, “critically, employees usually have little or no control in those settings.” The issue, in other words, may not be federal power per se but how federal power is deployed in situations in which certain workers may be relatively powerless. In contrast, the legal premise for the Medicare-Medicaid mandate is the protection of patients, not health-care workers directly. The Secretary of Health and Human Services’ authority to set standards for facilities that take federal Medicare and Medicaid money is well established. The federal government is the paying customer. And the idea of preventing the spread of a potentially dangerous disease in an already regulated health-care setting isn’t much of a stretch.
Indeed, given the clarity of the rationale for the Medicare-Medicaid mandate, the closeness of the margin is both striking and dispiriting. Four Justices opposed it. The outcome shows how hard-conservative the Court’s core is. (Kavanaugh is not exactly a centrist swing vote.) The reasoning in the dissents—there are two, one by Alito and one by Thomas, both joined by the other and by Barrett and Gorsuch—amounts to calling the vaccine an “unwanted medical procedure,” complaining about regulatory agencies generally, and saying that the Biden Administration has “not made a strong showing.” In the oral arguments, the Administration pointed to multiple statutory authorities for the Medicare-Medicaid mandate, which might be seen as a sign of the strength of its case; instead, the dissenters felt that this meant that they were being confronted with a “hodgepodge of provisions.” A reference in one such statute to “infection control” was dismissed as “oblique,” and other language as “obscure.” They saw only what they wanted to see. Those Justices often do.