Casual observers might think the Supreme Court’s ruling in National Federation of Business vs Department of Labor “temporarily” blocking OSHA’s vaccine-or-test mandate for large businesses is a major blow to President Biden’s Covid-19 vaccine strategy. It is. The OSHA mandate was the president’s last, and best, shot at significantly boosting America’s lagging vaccination rate. But the justices’ ruling has far deeper implications for the federal government’s ability to protect the public’s health and safety, ranging from occupational health to safe food and drugs, and environmental protection. If it’s followed through, the Court’s legal logic could make it nearly impossible for federal regulators to promote the general welfare of the public. Let’s start with the Supreme Court’s impact on businesses throughout America. Relying on the OSHA rule, many large businesses went ahead and required all their employees to become vaccinated. From MacDonald’s and Amtrak to American Express, Goldman Sachs and Blackrock, hundreds of companies mandated vaccines. So have universities. And the courts have upheld the right of private companies to require vaccination as a condition of work. CEOs, moreover, used the OSHA mandate as a political cover allowing them to do what they know is right for the health and safety of their employees. The Supreme Court has now unraveled all that. Just today Starbucks announced it will cease requiring vaccinations, citing the Supreme Court’s decision. Other companies will follow suit. Large businesses also welcomed the OSHA rule because it set a uniform national standard. Currently 11 states and counting have banned vaccine or mask mandates. That means companies may have to have one rule in one state and another rule in another state. That is why the OSHA rule was so business friendly—it would have preempted all contrary state laws and gave businesses a clear national policy. Technically, the Court merely stayed OSHA’s rule and sent it back to the Sixth Circuit to reconsider. However, the outcome of that ruling will almost certainly be appealed back to the Supreme Court, and in making its ruling, the 7-3 majority made crystal clear their antipathy, even antagonism, to federal agency powers to do big, hard things to safeguard health and safety. The Court’s opinion more than flirted with the so-called “major questions” doctrine, which posits that Congress must unambiguously authorize an agency to regulate issues of significant political or economic ramifications. This doctrine cuts against a line of precedents dating back to a landmark decision in the 1980s, but in its decision to stay the vaccine mandate, the Court cast doubt on all regulations that have “vast economic and political significance.”That language has the potential to open the floodgates of litigation against most regulations by federal agencies. After all, when the FDA approves a blockbuster drug or vaccine has enormous political and economic consequences.


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