Supreme Court strikes down nationwide “Emergency” mandate on constitutional reasoning

“Why does the major questions doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Consti- tution says it belongs—with the people’s elected represent- atives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.” Supreme Court

In this respect, the major questions doctrine is closely related to what is sometimes called the nondelegation doctrine. Indeed, for decades courts have cited the nondelega- tion doctrine as a reason to apply the major questions doctrine. E.g., Industrial Union Dept., AFL–CIO v. Ameri- can Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality opinion). Both are designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands.

BREAKING: The Supreme Court BLOCKS the federal government’s COVID-19 vaccine-or-test requirement for large workplaces. The court ALLOWS a vaccine mandate for workers at federally funded health care facilities to take effect nationwide. SCOTUS Blog

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vac- cine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. It requires that covered workers re- ceive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medi- cal test each week at their own expense and on their own time, and also wear a mask each workday. OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation ad- dressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that appli- cants are likely to prevail, we grant their applications and
stay the rule.

On September 9, 2021, President Biden announced “a new plan to require more Americans to be vaccinated.” Re- marks on the COVID–19 Response and National Vaccina- tion Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As part of that plan, the President said that the Department of Labor would issue an emergency rule requiring all em- ployers with at least 100 employees “to ensure their work- forces are fully vaccinated or show a negative test at least once a week.” Ibid. The purpose of the rule was to increase vaccination rates at “businesses all across America.” Ibid. In tandem with other planned regulations, the administra- tion’s goal was to impose “vaccine requirements” on “about 100 million Americans, two-thirds of all workers.” Id., at 3.

After a 2-month delay, the Secretary of Labor issued the promised emergency standard. 86 Fed. Reg. 61402 (2021). Consistent with President Biden’s announcement, the rule applies to all who work for employers with 100 or more em- ployees. There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely il- lusory. Id., at 61460. The Secretary has estimated, for ex- ample, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. Id., at 61461. The regulation otherwise operates as a blunt in- strument. It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meat- packers. OSHA estimates that 84.2 million employees are subject to its mandate. Id., at 61467.

Covered employers must “develop, implement, and en- force a mandatory COVID–19 vaccination policy.” Id., at 61402. The employer must verify the vaccination status of each employee and maintain proof of it. Id., at 61552. The mandate does contain an “exception” for employers that re- quire unvaccinated workers to “undergo [weekly] COVID– 19 testing and wear a face covering at work in lieu of vac- cination.” Id., at 61402. But employers are not required to offer this option, and the emergency regulation purports to pre-empt state laws to the contrary. Id., at 61437. Unvac- cinated employees who do not comply with OSHA’s rule must be “removed from the workplace.” Id., at 61532. And employers who commit violations face hefty fines: up to $13,653 for a standard violation, and up to $136,532 for a willful one. 29 CFR §1903.15(d) (2021).
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OSHA published its vaccine mandate on November 5, 2021. Scores of parties—including States, businesses, trade groups, and nonprofit organizations—filed petitions for review, with at least one petition arriving in each re- gional Court of Appeals. The cases were consolidated in the Sixth Circuit, which was selected at random pursuant to 28 U. S. C. §2112(a).

Prior to consolidation, however, the Fifth Circuit stayed OSHA’s rule pending further judicial review. BST Hold- ings, 17 F. 4th 604. It held that the mandate likely ex- ceeded OSHA’s statutory authority, raised separation-of- powers concerns in the absence of a clear delegation from Congress, and was not properly tailored to the risks facing different types of workers and workplaces.
When the consolidated cases arrived at the Sixth Circuit, two things happened. First, many of the petitioners— Full Decision on vacation and test HERE