Trying to make sense of the Supreme Court rulings on the vaccine orders

We tried to predict what the Supreme Court would do with President Biden’s vaccine mandates on health care workers and on employees of larger companies (see Supreme Court hears arguments on forced vaccination in two parallel universes).

In the ruling on the health care industry, dependent on the twin rivers of Medicare and Medicaid cash, the Supreme Court said the following:

In many facilities, 35% or more of staff remain unvaccinated, … and those staff, the Secretary explained, pose a serious threat to the health and safety of patients. That determination was based on data showing that the COVID–19 virus can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated.

the Secretary also found that “fear of exposure” to the virus “from unvaccinated health care staff can lead patients to themselves forgo seeking medically necessary care,” creating a further “ris[k] to patient health and safety.”

(The last one is interesting. Suppose that we find that patients are uncomfortable with white cisgender heterosexual physicians, whom they perceive as intellectually inferior due to being able to slide into medical school via privilege. Can the government order that the health care industry hire only the BIPOC and 2SLGBTQQIA+? Otherwise patients might forgo seeking medically necessary care.)

The core of the above-cited section is that a lawyer, with no technical or scientific training, has decided to disagree with a Stanford Medical School professor (see “Benefit of COVID-19 vaccination accounting for potential risk compensation” (Nature)) who found that the vaccinated might actually be more likely to get infected and spread disease if you assume (a) an imperfect vaccine, and (b) humans take more risks once they’ve been told that they’re invulnerable due to vaccination. (see also Perfect illustration of risk compensation rendering COVID-19 vaccines ineffective and Why doesn’t the raging plague in Maskachusetts cause doubt among the true believers in Faucism?)

So the Supreme Court accepts as scientific fact that vaccination and casting out the unvaccinated are critical to #StopTheSpread. This, plus potential patient discomfort with heretical providers, led to the Court approving Biden’s order.

In the ruling on generic private employers, however, COVID-19 seems to be a different, much milder, disease. Certainly COVID-19 does not present a “grave danger” to humans nor is SARS-CoV-2 “toxic or physically harmful.”

[workplace-related orders from the Pharaoh] are permissible, however, only in the narrowest of circumstances: the Secretary must show (1) “that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and (2) that the “emergency standard is necessary to protect employees from such danger.”

So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction— between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure,

The last paragraph says that there is an inevitable risk of COVID-19 exposure based on inhabiting the biosphere for workers, but, based on the previous ruling, this is apparently untrue for patients visiting Medicare- and Medicaid-funded health care facilities.

Let’s see who among us got this right…

  • I was at 50% (correct about health care order being approved, a 95 percent prediction and incorrect on my “less confident” prediction that the workplace order would be approved)
  • Craig said “I’m predicting the court will find the federal vaccine mandate to be an overreach simply because the narrative is already shifting towards Omicron <= flu and we must learn to live with it (like you predicted). There is no federal mandate for flu vaccinations, although I believe some federal agencies like VA hospitals can require staff to have flu immunizations.” (he didn’t separate out the two issues before the Court, but I think we might have to give him 100% since he mentioned “federal agencies” (and any enterprise on the Medicare/Medicaid dole is essentially a federal agency)
  • Jack was at 50%: “My guess is the Court will rule against the Biden administration — seems that a substantial number of Americans are opposed to the vaccine mandate & therefore any mandate will be widely ignored. Affects the Court’s legitimacy to uphold law that will be ignored & will encourage civil disobedience. Also, as a matter of numbers, the statist justices are in the minority.”
  • JT was at 50%: “Predict struck down and that it’s a blessing for Biden. It’s obvious it doesn’t stop the spread so all a mandate could possibly do is create onerous bureaucracy people hate.”

Can these rulings be considered logically consistent? There are sicker/older people who go to hospitals than to work. But on the other hand, hospital staff are highly competent at using the masks that the government says stop COVID-19 transmission. Also, the ruling is based on the vaccines being highly effective and sicker/older people are generally vaccinated. And if they can catch COVID-19 nonetheless, they will eventually catch COVID-19 indirectly from people who get COVID-19 in the unsafe workplaces. Ivan pointed out that “Sotomayor claimed that the federal government has ‘a police power to protect workers'”. If we combine these two orders do we find that the federal government has a police power to protect those visiting health care facilities, but as soon as the visit is over the police power evaporates?

Color me confused! The Supreme Court accepts that vaccination leads to reduced COVID-19 infection and transmission, and that the peasantry believe this as well, and therefore the government can order doctors and nurses to be vaccinated. Yet the government cannot order this vital protection for workers outside of health care? And, though this issue wasn’t before the Court, it sounds as though, unless prohibited by state law (as in Florida!), a mayor can order the peasants within a city to be vaccinated if they want to leave their hovels (see Washington, D.C. vaccine papers and Photo ID checks start tomorrow for example).

9 thoughts on “Trying to make sense of the Supreme Court rulings on the vaccine orders

  1. The key to understanding the health care employee ruling is to realize this has *nothing* to do with questions related to the “science” or evaluation of whether a policy makes sense. The only thing it has to do with is: was the administration granted legal authority to impose this mandate.

    The key phrases in the decision are:

    “First, we agree with the Government that the Secretary’s rule falls within the authorities that Congress has conferred upon him. ”

    and this:

    “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.”

    i.e. the Court didn’t even evaluate the issues that you refer to here:

    “So the Supreme Court accepts as scientific fact that vaccination and casting out the unvaccinated are critical to #StopTheSpread. This, plus potential patient discomfort with heretical providers, led to the Court approving Biden’s order.”

    The Court can only consider the issues that it is asked to rule on. It determined that the executive branch has the authority to make this decision. It wasn’t asked, and couldn’t address, whether the policy makes sense. The judicial system usually weighs in on whether the executive branch is playing by the rules: not on whether its decisions make sense. Its unclear whether there are any grounds under which the court would have the authority to assess the policy issues in this case.

    This particular ruling also was only to vacate a “stay” that had placed the mandate on hold while challenges to it proceed. As such it didn’t consider the larger pool of arguments and evidence that might come into play during that challenge proceeding itself or subsequent appeals. Its always possible that they will find better arguments against the mandate that somehow allow the Court to address the policy issues: but I haven’t looked into whether thats possible. It could be in theory that the mandate will be thrown out by the lower level court and then appealed back up and the Supreme Court eventually have another stab at it and could in theory make a different decision.

  2. re: “Can these rulings be considered logically consistent? ”

    They can be: because they are based on assessing different claims of legal authority to enact mandates. The issue is whether the mandates fall within the scope of the authority of the executive branch granted by various laws, and the two rulings are about two different laws.

    They aren’t based on the “science” except to the degree in the case of the employer mandate that they need to assess whether attributes of the pandemic lead it to fall within the scope of authority granted. I hadn’t read through the decision in detail to evaluate its reasoning and whether the reasoning would differ much depending on someone’s view of the “science”.

    The private employer mandate is also merely continuing a “stay” preventing the mandate from going into effect until the full legal challenge is heard. It might also be appealed back up to the Supreme Court and the decision could perhaps differ.

    • Thanks for this. Based on the statements about the Science sprinkled in the rulings, I do think that they’re somewhat based on the Justices beliefs regarding efficacy, no? Could the rulings have come down the same way if the orders from President Biden had been that health care workers had to wear plaid socks because #Science said that COVID-19 was less likely to infect those who wore plaid socks?

    • I did note that they aren’t based on science: “except to the degree… they need to assess whether the attributes of the pandemic lead it to fall within the scope of authority granted” (though I’ll add one more factor to that below). If the claimed “science” regarding the severity of the pandemic were too obviously absurd in ways laypeople could be sure of: perhaps it wouldn’t have been viewed as falling within the scope of their authority. Otherwise if the science is arguably unsettled: it seems likely they’d defer by default to the judgement of the agency for the purpose of deciding on a stay (since accurate or not: they defer to regulatory agencies by default as the “experts” until proven otherwise). They’d let any counter arguments be made in the actual detailed challenge to the law. A stay is only issued when the odds of a challenge succeeding are high rather than indeterminate.

      That is tempered by one other factor: the potential degree of irreparable harm done in the meantime if they decide wrongly about the stay. I guess that would involve weighing the harm incurred by the mandate vs. the claimed harm of of not having the pandemic, and that would involve the “science” to some degree: but again they likely would by default defer to the agency’s “expertise”. Courts where possible tend to try to make decisions based on legal reasoning and defer on matters of expertise in other areas until they are truly forced to evaluate them. Thats unfortunate when regulatory agencies shouldn’t be trusted to be experts: which is why some hope that the Court eventually overturns such default deference in a future decision.

      Even in the realm of regulatory interpretation, which would seem an area where judges should be viewed as having some expertise:
      “Chevron deference, or Chevron doctrine, is an administrative law principle that compels federal courts to defer to a federal agency’s interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the 1984 U.S. Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.”

    • Former judge Posner, the economic law foundation guy, used to be very critical of the “doctrine”, at least before he was infected with the Trump derangement syndrome. Not sure if he recovered from that. Gorsuch is rumored to be against the doctrine too, so there’s some hope, although I am not sure about his sanity either in the light of his latest rulings.

  3. Nooo Phil — the major issue and the only issue that anyone cared about was the private mandate and for that you get a zero & I get 100 — the other is who cares — did anyone even know that the other was on the docket? I didn’t. The two cases are not of equal weight — so I think a fair weighting would be me at 98% and you at 2%. Seems so make a lot more intuitive sense that the Secty of HHS can regulate health facilities and providers who receive federal funding than that OSHA can force every private employer to do whatever. Also, appellate courts rule based on a record not who is right and who is wrong & you no doubt haven’t read the record. So your “confusion” is based on a lack of understanding of the legal process — all that was at issue was whether the SupCt should defer to regulatory agencies not who is right and wrong on the science. The private mandate case was decided based on the lack of statutory authority for OSHA to do what it tried to do. If Congress had given OSHA statutory authority to do what it did then the ruling would have gone the other way. Regardless of who is right or wrong on the science.

    Man up Phil. This goes into the same pile as your prediction on the winner of the 2016 election (Hillary) and the outcome of the Kylie Rittenhouse case.

    • Looks like allowing the Congress the ability to delegate rule making authority (including preparation of the text of proposed laws) to unelected bureaucrats is a fatal flaw in the Constitution.

      US would be a much freer country had the Con(gress)men to actually work to pass the laws.

      … I think a President has the legal power to simply summarily declare all regulations which are not the acts of Congress to be null and void. What I don’t think Americans are smart enough to elect somebody with balls to do that.

    • averros: I’m not sure where the line would be drawn. Congress authorizes more than $1.5 trillion in annual Medicare and Medicaid spending (not counting coronapanic; see ). Given the scale of these programs, aren’t rules made by unelected bureaucrats a necessity? Maybe that is your argument, i.e., that Congress shouldn’t authorize spending programs that are too complex to be completely specified in the law itself.

  4. In medicare/medicaid surrender two justices at the middle tried to keep court balance to deflect more energetic attacks at Supreme Court from left and its administrative state.
    I think it was wrong and maybe cowardly part of the decision – it may look not important but in it a) Supreme Court tried to meddle in #science and of course gets it wrong. IMHO it is first time it uses false administrative view on #science at this moment in time as undeniable truth b) bound to make medicine much more expensive as millions will choose resign and not pursue medical careers and most important, $$$ will be reinforced as primary reason to pursue medical career) medicare and medicaid affects everyone as it is based on involuntary donations of all who ever gotten a paycheck, it is not just executive branch privilege due to coercive and 360 degrees nature of medicad and medicare funding, basically it forces unconstitutional mandate at all medical institutions, at least where state laws does not prevent it.
    In our judicial systems a) and c) create dangerous precedents that will result in disastrous judicial decisions in the future. This is a very dangerous precedent.
    Craig’s prediction was the closest to what transpired, he mention that VA will be under mandate. I think Crag was at 60% here.

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