By a 6-3 vote, the Supreme Court has halted the Biden administration’s vaccination-or-testing requirement on large American employers. The majority doubted the existence of legal authority for the sweeping mandate. The Court’s three liberals — Justices Breyer, Sotomayor, and Kagan — dissented.
The Court did, however, allow to remain in place the administration’s requirement of vaccinations for most health-care workers at facilities that receive Medicaid and Medicare funds. The vote in that case was 5-4. The dissenters were Justices Thomas, Alito, Gorsuch, and Barrett.
There was a concurring opinion in the employer mandate case. Justice Gorsuch wrote it. He was joined by Justices Thomas and Alito.
Gorsuch’s concurrence declares that power to respond to the pandemic rests with the States and Congress, not OSHA. He cites the “major questions” doctrine.
My quick reading of the opinions (I wanted to get this initial report on the case up quickly) didn’t reveal substantive disagreement, on the surface anyway, among the six Justices in the majority. However, there was a clear divergence in approaches among the six in the vaccination-for-healthcare-workers case.
There, Justice Barrett joined the three Justices who concurred in the employer-mandate case as a dissenter. The Chief Justice and Kavanaugh sided with the employer-mandate dissenters (the three libs) to form a majority.
The two cases confirm that Roberts and Kavanaugh now constitute the Supreme Court’s center. The four more conservatives Justices will have to be joined by at least one of these two to gain a majority in highly controversial cases.
The four conservatives went 1-for-2 today.
BY THE WAY: Dan McLaughlin believes today’s decisions bode poorly for Biden’s mandate for employees of federal contractor.