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Greetings, Court Fans!

On Thursday, the Court issued two hotly anticipated decisions involving the Biden Administration’s COVID-19 vaccine mandates. In National Federation of Independent Business v. Department of Labor (No. 21A244), a 6-3 Court stayed the OSHA’s mandate that would have required 84 million workers to be vaccinated or obtain weekly negative tests. But in Biden v. Louisiana, No. 21A241, a 5-4 Court upheld a mandate requiring healthcare workers at facilities receiving federal funds to be vaccinated unless they qualify for an exemption. The Court also held in Babcock v. Kijakazi, No. 20-480 that a “dual status” military technician’s work was performed in a civilian, not military, capacity, meaning that the pension he received for that work should offset his Social Security benefits. Read on for summaries of all three decisions, and don’t sleep on Babcock! (Or do; it won’t mind…)

Two separate vaccine mandates have been challenged in the Supreme Court. The first is OSHA’s mandate, which applies to all private employers with at least 100 employees, covering approximately 84 million workers. It requires that these workers be vaccinated (preempting any contrary state laws) or obtain a negative test each week at their own expense. The second applies to healthcare facilities receiving Medicare and Medicaid (CMS) funding. In November, the Secretary of Health and Human Services issued an interim final rule requiring all such facilities to ensure that their staff are vaccinated, unless they qualify for a medical or religious exemption. Both mandates were challenged by employers, nonprofits, and a number of states in several suits across the country. The challenges to the OSHA mandate were consolidated before the Sixth Circuit (randomly selected by the Judicial Panel on Multidistrict Litigation), which declined to issue a stay and vacated a stay that had already been issued by the Fifth Circuit, prior to consolidation. The challenges to the CMS mandate was heard by district courts in Louisiana and Missouri, which each entered preliminary injunctions barring enforcement. The Fifth and Eighth Circuits declined to stay those injunctions.

The Supreme Court expedited both challenges and heard argument (for over four hours) just last week. In its two decisions handed down yesterday, the Court reversed the Sixth Circuit and the Fifth and Eighth Circuits, meaning that the OSHA mandate will be stayed pending further litigation, while the CMS mandate can go into effect.

The Court addressed the OSHA mandate in National Federation of Independent Business v. Department of Labor (No. 21A244). In a per curiam decision (over a dissent from the three more liberal justices), the Court concluded that OSHA likely exceeded its authority under the Occupational Safety and Health Act in imposing the mandate. The Act permits OSHA to set workplace safety standards, not broader public-health measures, the majority held. And it determined that the risk of contracting COVID-19 is not a “work-related danger.” “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” Instead, it poses a “universal risk” no different from all manner of other “day-to-day dangers” like crime, pollution, and disease that workers face in common with the rest of the population. While the majority allowed that OSHA could regulate “occupation-specific risks related to COVID-19”—for example, with rules targeted at researchers working with the virus or the risks of working in particularly crowded environments—it concluded that the existing mandate failed to distinguish between occupational risk and risk more generally.

Justice Gorsuch penned a concurring opinion, joined by Justices Thomas and Alito. He stressed that the case was not about whether a vaccine mandate might be permissible in the abstract, but about who—what level and part of government—can insist upon it. “Under the law as it stands today, that power rests with the States and Congress, not OSHA.”

Justices Breyer, Sotomayor, and Kagan joined in a single dissent. In their view, it is obvious that COVID-19 poses a particular threat to workers, because it spreads by close person-to-person contact in indoor spaces. Moreover, workers have less control over their environments than others and therefore are less able to mitigate the risks they face in the workplace. It was therefore perfectly logical and appropriate for “the administrative agency charged with ensuring health and safety in workplaces” to do so by addressing COVID-19’s threats to workers. By mandating that workers be vaccinated or submit to weekly testing, OSHA was acting within its authority to issue “emergency temporary standard[s]” that are necessary to protect workers from “grave danger” from “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” Even if it was not clear that the Act authorized OSHA’s mandate, the dissenters would have denied a stay because the balance of harms and public interest support allowing the mandate to go into effect. The public interest in preventing thousands of unnecessary deaths and hospitalizations “overwhelms” the alleged costs to employers and states of implementing the mandate.

The Court looked differently upon the CMS mandate, which it addressed in Biden v. Louisiana, No. 21A241. There, a majority of five (the Chief and Justice Kavanaugh joining the liberals) concluded that the Secretary of Health and Human Services acted within his statutory authority in requiring most healthcare workers at facilities receiving federal funds to be vaccinated. Congress specifically authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Here, the Secretary determined that a vaccine mandate would substantially reduce the likelihood that healthcare workers would contract the virus and spread it to patients. That was good enough for the majority. After all healthcare facilities participating in Medicare and Medicaid “have always been required to establish a host of conditions that address the safe and effective provision of healthcare,” not all of which merely relate to accounting for federal funds. While CMS has never issued a vaccine requirement before, it cannot be denied that COVID-19 poses a very new threat to healthcare workers and their patients. The mandate was therefore both within the Secretary’s authority and not arbitrary or capricious. The Court therefore stayed the injunctions that had been entered in Missouri and Louisiana and remanded for full consideration of the merits in the lower courts.

Justice Thomas dissented, joined by Alito, Gorsuch, and Barrett. Thomas faulted the Government for purporting to find the Secretary’s power to issue a vaccine mandate in a “hodgepodge” of statutory provisions  (including “definitional provisions, a saving clause, [and] a provision regarding long-term care facilities’ sanitation procedures”) when an exercise of such significant power should require a more clear statement from Congress. And he faulted the majority for sanctioning the CMS mandate based not on the Government’s proffered statutory provisions, but instead on CMS’s own regulations, which “appears to put the cart before the horse.” As the majority had observed in the OSHA case, “[w]e expect Congress to Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” To Thomas and the other dissenters, Congress had spoken no more clearly in authorizing CMS to impose a vaccine mandate than it had OSHA.

Justice Alito penned a separate dissent on behalf of the four dissenters. His focused on purported problems in the procedure CMS used to adopt the vaccine mandate (assuming that it had the authority to do so in the first place). While executive agencies have expansive power to promulgate rules and regulations, they are generally required to do so only after giving the public notice the opportunity to comment. Though notice-and-comment requirements can be excused where an agency shows “good cause,” Justice Alito rejected CMS’s argument that the pandemic itself provided it good cause to exercise swift action.

So what can we make of these split decisions? Oftentimes, when two similar cases come out different ways, the Justice or Justices in the majority of both will author a concurrence explaining why. Here however, neither the Chief nor Justice Kavanaugh wrote separately to explain why they found OSHA’s mandate objectionable but CMS’s permissible. It is likely, however, that one or both authored the per curiam opinions setting forth the Court’s reasoning, which seemed to be that OSHA’s mandate was both more far reaching and less tied to the agency’s core statutory mandate than CMS’s. The other conservatives, meanwhile, took a more skeptical view of agency power in general (articulated most clearly in Justice Gorsuch’s OSHA dissent, which took quite a few steps toward resurrecting the non-delegation doctrine), while the liberal justices maintained their usual tolerance of the exercise of agency power. Whatever the precise reasoning of each Justice, the end result is a significant, though not fatal, blow to the Biden Administration’s effort to vaccinate the nation’s workforce.

Now for the main event: Babcock v. Kijakazi, No. 20-480, where the Court decided the meaning of “as”—as in, whether the petitioner worked “as” a member of a uniformed service or “as” a civilian while performing his job. The answer to that question would determine whether the petitioner received a reduction in Social Security benefits. In an 8-1 decision, the Court took a narrow reading of “as” and held that the petitioner’s work had been performed “as” a civilian,” thus warranting a reduction in his Social Security benefits.

Under a statutory formula, if retirees receive pension benefits, their Social Security benefits are reduced to account for that additional source of income. But there are exemptions; certain pension payments aren’t counted against recipients and their Social Security benefits remain unaffected. This case was about an exemption for “a payment based wholly on service as a member of a uniformed service.” The petitioner, David Babcock, had served as test pilot and pilot instructor for the National Guard in a role formally known as “military technician (dual status).” Consistent with his title, Babcock’s job had both military and civilian characteristics. On one hand, his position was defined as that of a “civilian employee,” he was a member of the “civil service,” he was not subject to the Uniform Code of Military Justice, and he had civilian rights to redress for things like employment discrimination and workers’ compensation. On the other hand, he was required to be a member of the National Guard (and, in fact, had been deployed to Iraq), had to wear a uniform while working, and was subject to the jurisdiction of the Adjutant General. After retiring in 2009, Babcock received two pensions. One was for his service as a technician and came from the Office of Personnel Management. The other was for his service as a National Guard member and came from the Defense Finance and Accounting Service. No one disputed that Babcock’s National Guard pension fell under the uniformed-service exemption. But the Social Security Administration did not apply the exemption to his technician pension. Babcock’s administrative appeals were unsuccessful, as were his federal suit and appeal to the Sixth Circuit that followed.

Justice Barrett, writing for the majority, framed the issue as whether Babcock’s technician work was service “as” a member of the National Guard. She quickly concluded it was not, emphasizing the formalities and administrative classifications of his position. “As,” the Court said, is most naturally read to mean “in the role, capacity, or function of.” Because the statute “broadly and repeatedly” called the position a “civilian” one, a dual-status technician necessarily served “in the role, capacity, or function of” a civilian. Babcock had argued that because the military characteristics of his work predominated, Congress’s label shouldn’t control and that the Court should adopt a meaning of the word “as” that meant “in the likeness of” or “the same as.” The Court rejected this “functional” and “looser” approach. Likewise, it also rejected the notion that its decision improperly elevated form over substance. While a line drawn for “administrative bookkeeping” might not always be important, it was in this context: “bookkeeping matters when it comes to pay and benefits.”

Justice Gorsuch dissented. He would have held that Babcock’s technician work was performed “as” a member of the National Guard, arguing that the analysis should involve a subjective component. On that view, courts should consider not only what Babcock’s job as a “dual-status” technician actually entailed but also whether dual-status technicians “would consider” their work to be uniformed service. Justice Gorsuch would’ve respected Babcock’s “reasonable understanding” that it was.

That’s all for this week. We’re expecting the Court to issue more decisions next week, and we’ll be back then to cover them. Until then!

Tadhg and Dave