It appears to me that neither vaccine mandate case is really "done." They just granted the stay in both cases. Granting the stay in the OSHA case keeps the OSHA from implementing/enforcing the rule. Granting the stay in the CMS case allows implementation and enforcement to continue.
Granted, the votes on the stay probably indicate how they will vote when the cases are eventually ruled upon but technically this is only temporary.
Generally, yes, but also, no. The grant of the stay in the OSHA case brought by business groups led by the NFIB probably dooms the rest of that case: "Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate."
Slip op. at 5. Six votes. As predicted in posts above, if Congress had intended this particular agency to issue an order as sweeping as this one, it would have had to write the statute much more clearly (under the "major question" doctrine). Note also, (and to avoid claims that this is some kind of political victory or defeat), in jurisprudential terms, this is a 3-3-3 Court (three liberal statutory interpreters, three conservatives, and three others, sometimes described as libertarians, institutionalists, or incrementalists, but certainly all described as textualists, meaning that the meaning of the statute is best derived from the text of the statute). Here, the three conservative and three textualist justices made up the majority, with the conservatives arguing for a more specific rule, and the textualists simply going with Sixth Circuit Chief Judge Jeff Sutton's analysis of the "major question" doctrine requiring Congress to speak more precisely. The three liberal justices, following their "collectivist" jurisprudence, would have construed the text differently "in the public interest" to allow more flexibility in the governmental response.
Once again, the Court that deferred to governmental expertise on health issues earlier in the pandemic, when there were no remedies and no certainty, is no longer willing to defer on issues that require a constitutional determination that is reserved to the Court, not agencies.
Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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.
Slip op. at 6-7 (emphasis added).
The split/dissent on the health care workers mandate is an interesting one. Roberts and Kavanaugh upholding it.
It is interesting, but not surprising. Here textualism was not as clear an indicator, especially since this was a Spending Clause case, where the recipients of government funding must agree, in advance, to abide by rules issued by the funding agency. And, like all government funding recipients, health care funding recipients know that government can and will issue rules that would not be constitutionally permissible if applied to others who have not chosen to abide by such rules. In other words, if you take the government's coin, you also take the government's rules, meaning you also may be giving up some of your constitutional rights. There are many cases in which this principle is at the heart of a case's debate, but this is not one of them; the issue wasn't constitutional interpretation, but what the statute said.
And here the new vaccination rules were much closer to powers clearly delegated by Congress to the funding agency than in the
NFIB case.
See, e.g.,
Slip op. at 5, * ("We see no reason to let the infusion-clinic tail wag the hospital dog, especially because the rule has an express severability provision."). So, in short, the Congressional delegation language was much clearer, in favor of the agency. In terms of the Court's 5-4 lineup, Justice Barrett (ordinarily in the middle group) joined the jurisprudential conservatives' argument that the statutory language was not sufficiently precise, but the Chief Justice, Justice Kavanaugh and the liberal justices thought Congress had been clear enough. It's not a 6-3 Court, and 3+2 > 3+1.
"The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have. ... [T]he latter principle governs in these cases, ..."
Slip op. at 9.
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