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On Friday, the nation’s High Court heard oral arguments regarding whether or not to order injunctions against the Occupational Safety and Health Administration’s (OSHA) mandate that large private businesses must vaccinate all employees against COVID-19 and the mandate ordered by the Centers for Medicare and Medicaid Services (CMS) that all healthcare organizations receiving certain federal funding require the shot for their healthcare workers.
After multiple lawsuits against the OSHA mandate were consolidated at the Sixth Circuit Court of Appeals, a three-judge panel reinstated the mandate. The attorneys general of 27 Republican states filed suit against the mandate, saying in a brief, “For the vast majority of covered employees, the Covid-19-related risk presented by work is the same risk that arises from human interaction more broadly. The virus’s ‘potency lies in the fact that it exists everywhere an infected person may be — home, school, or grocery store, to name a few.’ Because it is not an occupational danger, it is not the sort of danger that the Emergency Provision empowers OSHA to address.”
The National Federation of Independent Business said,
“[The mandate] will impose substantial, nonrecoverable compliance costs on those businesses. Those businesses will be faced with either incurring the costs of testing for the millions of employees who refuse to be vaccinated — and passing those costs on to consumers in the form of yet higher prices at a time of record inflation — or imposing the costs of testing upon their unvaccinated employees, who will quit en masse rather than suffer additional testing costs each week. The resulting labor upheaval will devastate already fragile supply chains and labor markets at the peak holiday season.”
During oral arguments Friday, the Supreme Court’s liberal judges made their support of the mandate clear. When presented with the argument that OSHA is overstepping its bounds, Justice Kagan said, “It’s an extraordinary use of power taking place in an extraordinary situation.”
“We all know what the best policy is, we know the best way to stop spread is for people to get vaccinated and to stop serious illness is for people to get vaccinated,” she continued.
“The second best is to wear masks. Why isn’t that necessary, what else should be done?”
Justice Breyer asked,
“How can it conceivably be in the public interest [to stay the mandate] with three quarters of a million people, I don’t know how many today, you have hospitalization figures growing by factors by 10, you have hospitalizations near the record, at the record…how can it be in the public interest, which is a requirement. That’s what I want to hear the answer to.”
Scott Keller, representing the National Federation of Independent Business, responded, “This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs.” He warned that only 28 percent of employers can find adequate weekly testing, and if Congress intended for OSHA to have that power it would have said so.
Justice Sotomayor repeatedly asserted that the OSHA rule was not a mandate because it provided an option for weekly testing. She also bristled at the claim that the Omicron variant was less severe saying, “Lower risk is not no risk.”
When Justice Barrett asked if Keller would oppose the mandate if it was only a mask mandate he responded that he would because OSHA, “doesn’t have the ability to set a nationwide COVID rule by emergency rule.”
Chief Justice Roberts raised a question regarding a retweet by White House Chief of Staff Ronald Klain that called the OSHA rule a “workaround.”
“I mean, this has been referred to the approach as a workaround. And I’m wondering what it is you’re trying to work around?”
The Biden administration’s lawyer Solicitor General Elizabeth Prelogar said that the mandate was the “single most effective way of targeting” serious illness. She added, “Vaccination provides protection on all of those fronts.”
Justice Kavanaugh argued that Congress has not given OSHA this authority.
The Justices also heard arguments against a vaccine mandate put in place by the Centers for Medicare and Medicaid Services (CMS) for all workers of healthcare providers that receive certain federal funding.
Ironically, two attorneys arguing the case could not appear in person at the Supreme Court after testing positive for COVID-19, including Ohio Solicitor General Benjamin Flowers, who said in a statement that he was fully vaccinated and boosted but experiencing mild symptoms.
Roberts’ question is key in this case. Why the workaround? The Executive Branch is seeking to unilaterally impose a medical mandate on the American people in violation of the Constitution. These unilateral mandates ordered by a single branch of government across all 50 states are dangerous. In order for the American system of government to thrive, the balance of powers must be respected, otherwise one branch can become too powerful, and power is stripped from the people.
Not only does the mandate pose a risk based on how it was carried out with regard to the current virus, but on what it mandates. In 1905 the Supreme Court determined in Jacobson v Massachusetts that the state legislature could enact a compulsory vaccine law, but in 1927 the Court explicitly used that precedent in Buck v Bell to justify forced sterilizations.
In discussing the case of a young, mentally challenged woman named Carrie Buck, Justice Oliver Wendell Holmes, wrote, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes….Three generations of imbeciles are enough.”
If the federal government can force people to undergo a medical intervention like a vaccine, is there anything they cannot enforce for the sake of the greater good? Many climate change experts, for example, believe that there is too much population growth to sustain the planet. So can the Environmental Protection Agency start mandating forced abortions, forcible sterilizations, or even euthanasia in order to ensure our society maintains few enough residents?
Our country was founded by people who deeply distrusted government and who knew that too much power in the hands of authoritarians would lead to the subjugation of the people. The Biden administration has no right to impose this mandate, certainly not through OSHA and other federal agencies, and it is up to the Supreme Court to stop a rogue Executive Branch from doing lasting damage to our great republic.
Editor’s Note: The Standing for Freedom Center takes no official position on the COVID-19 vaccination. Our position is simply freedom. We do not encourage people to take the vaccine nor do we discourage people from receiving the vaccine as we believe that is a personal choice to be made individually based on personal health, research, and individual liberty. Any opposition that our articles show towards the vaccine conversation is about the mandates, not the vaccine itself. We oppose government overreach, no matter the variable. –John Wesley Reid
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