Breyer, Sotomayor, & Kagan dissent from the decision to block the vax-or-test rule for workplaces of 100 or more employees. Thomas, Alito, Gorsuch, & Barrett dissent from the decision to allow the health care vaccine mandate to take effect nationwide.

Looks like there was a trade-off… but the OSHA shutdown is the BIG win.



Some excellent excerpts from the SCOTUS OSHA ruling which was just handed down. The CMS mandate (regulating vaccinations for workers at federally funded healthcare facilities) was upheld but there are other state-level efforts which might work around those mandates.

Kavanaugh switched sides and voted to uphold the CMS with Roberts. I’m guessing there was some horse-trading going on so the court wasn’t perceived as partisan on this issue.

But the OSHA ruling was fantastic. Quotes below:

“The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’”…

“It is instead a significant encroachment into the lives—and health—of a vast number of employees… The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”

“Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most…”

Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

“The dissent contends that OSHA’s mandate is comparable to a fire or sanitation regulation…. But a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’”

“This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”

Gorsuch, Thomas and Alito join in their own concurring opinion: “This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land. “

They give a nod to my friends at @LJCenter and their lawsuit with “Brandon” the grocer: “It seems, too, that the agency pursued its regulatory initiative only as a legislative ‘work-around.’ BST Holdings, L.L.C. v. OSHA”

“Yet that is precisely what the agency seeks to do now—regulate not just what happens inside the workplace but induce individuals to undertake a medical procedure that affects their lives outside the workplace.”

“Whichever the doctrine, the point is the same. Both serve to prevent ‘government by bureaucracy supplanting government by the people.'”



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