READ IT: Supreme Court’s Massive Blow Against Biden’s Vaxx Mandate

The Supreme Court on Thursday blocked the Biden administration’s vaccine mandate for employers with at least 100 employees.

On November 4, the Occupational Health and Safety Administration (OSHA) ordered all companies with at least 100 employees to ensure that they were either vaccinated against COVID-19 or tested weekly. The order was immediately met with opposition, including from The Daily Wire, which was the first business to sue the Biden administration in the Sixth Circuit. 

This was the first time since 1970 that the Supreme Court heard a case over a stay, and the majority of justices signaled their opposition to the rule during hearings last Friday. 

On Thursday, the Supreme Court blocked the vaccine mandate in a 6-3 decision, with all conservative justices concurring, and the three liberal justices dissenting.   

The Secretary of Labor, acting through the Occupational Safety and Health Administration, recently enacted a vaccine 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 receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical 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 addressing 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 applicants are likely to prevail, we grant their applications and stay the rule.

Congress enacted the Occupational Safety and Health Act in 1970. 84 Stat. 1590, 29 U. S. C. §651 et seq. The Act created the Occupational Safety and Health Administration (OSHA), which is part of the Department of Labor and under the supervision of its Secretary. As its name suggests, OSHA is tasked with ensuring occupational safety— that is, “safe and healthful working conditions.” §651(b). It does so by enforcing occupational safety and health standards promulgated by the Secretary. §655(b). Such standards must be “reasonably necessary or appropriate to provide safe or healthful employment.” §652(8) (emphasis added). They must also be developed using a rigorous process that includes notice, comment, and an opportunity for a public hearing. §655(b).

The Act contains an exception to those ordinary noticeand-comment procedures for “emergency temporary standards.” §655(c)(1). Such standards may “take immediate effect upon publication in the Federal Register.” Ibid. They are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.” Ibid. Prior to the emergence of COVID–19, the Secretary had used this power just nine times before (and never to issue a rule as broad as this one). Of those nine emergency rules, six were challenged in court, and only one of those was upheld in full. See BST Holdings, L.L.C. v. Occupational Safety and Health Admin., 17 F. 4th 604, 609 (CA5 2021). 

On September 9, 2021, President Biden announced “a new plan to require more Americans to be vaccinated.” Remarks on the COVID–19 Response and National Vaccination 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 employers with at least 100 employees “to ensure their workforces 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 administration’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 employees. There are narrow exemptions for employees who work remotely “100 percent of the time” or who “work exclusively outdoors,” but those exemptions are largely illusory. Id., at 61460. The Secretary has estimated, for example, that only nine percent of landscapers and groundskeepers qualify as working exclusively outside. Id., at 61461. The