JORDAN SEKULOW, ACLJ
We won. The Constitution won.
The U.S. Supreme Court just issued an emergency stay blocking President Biden’s “vaccine mandate” power grab, delivering a significant constitutional victory for our client, The Heritage Foundation, as well as employers and employees all across the country.
The unsigned per curiam opinion of the Court opens by directly addressing the heart of the issue:
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.
The Supreme Court sent a clear message to the lower courts that our arguments are “likely to prevail.” In other words, this vaccine mandate will not go into effect unless and until the Supreme Court were to issue a final ruling, and the Court has made it clear that this vaccine mandate will not stand.
This is a MAJOR victory not only for our client, The Heritage Foundation, but also for our members and the Constitution itself.
The majority, or per curiam, opinion (delivered by a vote of 6-3) very closely tracks the briefs we filed in this case, driving home the point that President Biden’s vaccine mandate clearly oversteps regulatory, congressional, and constitutional authority:
- “The question is . . . whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.”
- “The Solicitor does not dispute that OSHA is limited to regulating ‘work-related dangers.’ She instead argues that the risk of contracting COVID-19 qualifies as such a danger. We cannot agree. Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. . . . 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.”
- “A vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all ‘cannot be undone at the end of the workday.’”
- “Imposing a vaccine mandate on 85 million Americans in response to a worldwide pandemic is simply not ‘part of what the agency was built for.’”
- “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
The Supreme Court further noted that Congress has, in fact, not acted with regard to vaccines when it could have. “In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021).”
Further, as Justice Gorsuch, joined by Justice Thomas and Justice Alito, succinctly and aptly noted in his concurring opinion:
The question before us is not how to respond to the pandemic, but who holds the power to do so. The answer is clear: Under the law as it stands today, that power rests with the States and Congress, not OSHA.
That was precisely the point we made in our application for stay and subsequent briefing. In fact, as we noted in the opening paragraph of our reply brief, President Biden recently conceded that “the problem should be ‘solved at the State level.’”
In November 2021, the ACLJ filed a lawsuit against President Biden’s vaccine mandate on behalf of The Heritage Foundation – one of the largest conservative organizations in the nation known for its work to formulate and promote public policies that advance free enterprise, limited government, individual freedom, and traditional American values. Following the Sixth Circuit Court of Appeals’ decision allowing the mandate to go into effect, the ACLJ filed an emergency application for stay and cert petition to the Supreme Court.
The Heritage Foundation’s president, Kevin Roberts, said of today’s decision:
The federal government has no business dictating the private and personal health care decisions of tens of millions of Americans, nor does it have the authority to coerce employers into collecting protected health care data on their employees. By striking down the Biden regime’s unlawful COVID-19 vaccine mandate, the Supreme Court has signaled its agreement with this basic tenet of a well-functioning and free society. . . .
We’re grateful for the work of our partners at ACLJ for representing Heritage in this case. Their representation of Heritage and the American people was second to none.
Today’s Supreme Court ruling, upholding our client’s rights, is a resounding victory for the Constitution. We will continue fighting this mandate in the courts and working to stop the Biden Administration and the Left’s attempts to seize unconstitutional power at every turn.
Used with the permission of the American Center for Law and Justice.
Jordan Sekulow is the Executive Director of the American Center for Law and Justice (ACLJ).