OSHA’s Large-Employer Vaccine Mandate Headed to the Supreme Court!

Split Decisions

To date, we have had two US Courts of Appeal rule on the OSHA employer vaccine mandate: on November 12, the 5^th Circuit Court of Appeal held that the mandate was unlawful and put it on hold; then, after the case was reassigned, the 6^th Circuit reversed course, holding that the mandate can be enforced. Then, along with other suing parties, on December 18 attorneys from the Liberty Justice Center filed a petition with the US Supreme Court asking them to overturn the 6^th Circuit. According to the Epoch Times, many firms, states, and religious groups have filed similar petitions, and Justice Brett Kavanaugh has directed the Biden administration to file responses by December 30.

State-Federal Balance of Power at Stake

Liberty Justice Center attorney Daniel Suhr told the Times, “This case is finally where it belongs: the Supreme Court. OSHA has threatened to start punishing employers like our clients starting on January 10, and we’re grateful the court has ordered a briefing schedule that will allow for resolution of our petition before that deadline.”

The main issues raised by those challenging the mandate are 1) it exceeds OSHA’s authority, and 2) it exceeds the federal government’s constitutional power. The high court has rejected several appeals from folks and groups suing over state vaccine mandates, but since traditionally states, and not the federal government, have authority over public health, how the judges will rule is an open question.

The US Supreme Court has set rapid deadlines for the parties to file documents, and they have scheduled a special session to allow for oral argument on January 7, 2022. That same day, the court will also hear cases involving the separate Medicare/Medicaid mandate.