Do Americans Have the Freedom to Choose Vaccinations or Not?

            The liberty principle for this Freedom Friday concerns the federal mandates for COVID-19 vaccination. Today, the Supreme Court heard oral arguments on two cases that were rushed to it on an emergency basis. In an article published by The Daily Signal, Sarah Parshall Perry and Paul J. Larkin Jr. gave some takeaways on the two cases. 

The first case, NFIB v OSHA, arose from challenges filed by employers … and states against the Occupational Safety and Health Administration’s vaccine-or-test mandate (known as an emergency temporary standard, an emergency rule applying to employers with 100 employees or more) ….

In that case, the plaintiffs argued that the Occupational Safety and Health Act of 1970 did not clearly authorize OSHA to commandeer businesses into implementing a vaccine-or-testing mandate covering perhaps 84-plus million Americans.

The plaintiffs also argued that OSHA was required to use regular notice-and-comment procedures required by the Administrative Procedure Act (a way to ensure thoughtful and public rulemaking by executive agencies), instead of issuing an emergency rule.

The second case, Biden v. Missouri, involved state-filed lawsuits that sought to block a vaccine mandate issued by the Centers for Medicare and Medicaid Services under the Medicare and Medicaid laws for workers at health care facilities.

The states argued that the Centers for Medicare and Medicaid Services lacked the authority to condition a facility’s participation in those programs on compliance with a vaccination mandate for all health care personnel. The states also maintained that, by statute, the federal government cannot manage personnel decisions at medical facilities, but the mandate would impermissibly have that effect.

            According to the authors, the three liberal justices – Stephen Breyer, Sonia Sotomayor, and Elena Kagan – were more interested in the facts of the cases than the law. They “repeatedly questioned counsel about the harm that the public would suffer if the mandates were delayed ‘even for a second’” …. There was more discussion about the facts than the law. “In fact, no act of Congress expressly authorizes any federal agency to demand that anyone be vaccinated against any disease” (emphasis added).

            Other judges, including Justice Brett Kavanaugh, tried to make “this important legal point,” but their statements might have been lost by the questions of the liberal justices.

In the OSHA mandate argument, Chief Justice John Roberts made clear that the federal mandates have been referred to as a “workaround,” a reference echoed by Justice Neil Gorsuch. He went on to ask the government’s attorney, U.S. Solicitor General Elizabeth Prelogar, “What are you trying to work around?”

            Justice Amy Coney Barrett wanted to know how long the authority of the “emergency” regulation would last. “The absence of a self-limiting principle seemed to be problematic for all the conservative judges.”

            The two mandates “both stem from statutory language that has never been used to require vaccination.” The questions from the justices “seemed to indicate … the government lacks any authority to do so” under either law.

            The authors indicated that the justices would make their decision in both cases “in the very near future” and write their opinions after “halting the vaccination mandate or allowing them to go forward.” The consequences for decisions in the two cases “promise to reverberate for some time.”