Final Answer: The Supreme Court to decide Biden’s vaccine mandates once and for all

The High Court agrees to hear oral arguments regarding the OSHA ETS and CMS on January 7th, 2022

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The breaking news on Wednesday night, December 22, 2021, was the US Supreme Court agreed to take up two of Biden’s COVID-19 vaccine mandates. This follows the Sixth Circuit Court of Appeals’ 2–1 ruling on December 17 reversing the Fifth Circuit’s halt to the mandate. 1 There may be some general confusion as to what each mandate means, so here’s a breakdown:

Biden’s List of Mandates

1. OSHA Emergency Temporary Standard (ETS) — Issued 11/05/2021 — This is perhaps the most well-known mandate given it has the greatest impact. It applies to every private sector employer with 100 or more employees, or 84 million workers.2 This is two-thirds of the country’s workforce and would require every employee to be “ fully vaccinated,” or face indefinite weekly testing for COVID-19. Companies would maintain records for proof of compliance with OSHA auditors. 3
2. Centers for Medicare & Medicaid Services (CMS) — Issued 11/05/2021 — Medicare and Medicaid-certified providers and suppliers must meet the requirements issued under this rule. This would apply to over 17 million healthcare workers at 76,000 health facilities where Medicare or Medicaid is accepted. 4
3. Executive Order 14043- Federal Executive Branch Employees — Issued 09/09/2021 — All federal employees within the Executive Branch ( does not apply to Judicial or Legislative Branches) required to be fully vaccinated by November 22, 2021. ( NO TESTING OPTION)
4. Executive Order 14043 — Federal Executive Branch Contractors — Issued 09/09/2021 — All federal contractors of the Executive Branch must be fully vaccinated by December 5, 2021. ( NO TESTING OPTION) 5

The first two on that list-OSHA and CMS healthcare workers-have been consolidated and will be heard by the Supreme Court. Oral arguments will be January 7, 2022. 6 Thus far, challenges to the federal mandates were largely successful across the judiciary.

Good Chance the Mandates Fail

There is much to be optimistic about. For starters, OSHA has had an atrocious record with Emergency Temporary Standards. Only one was successfully litigated by OSHA, and that was in 1978. 7 The reasons as to why are numerous. They’re inherently overreaching, bypassing public comment periods where OSHA policies are scrutinized and refined. OSHA rules typically take years and extensive feedback by stakeholders before they are imposed. The compliance of this mandate in particular is extremely onerous-weekly testing by employees at the expense of employees? And employers must document this company-wide? It’s too burdensome.

An OSHA ETS must also survive a “ grave danger” standard. The problem is COVID isn’t constrained to the workplace itself. People are socially mobile with hundreds or thousands of interactions in day. OSHA’s scope is over dangers within the workplace. How the ETS is worded doesn’t even make the argument unvaccinated workers are dangers to others-but that they are dangers to themselves. OSHA suggests by your very existence you’re a grave danger and as such you must be vaccinated against your will. Or be tested weekly…but what good does that do if I’m already infected and unvaccinated, and being unvaccinated is a grave danger? You can see where OSHA’s stance is a head scratcher.

Finally, the Supreme Court will look to Chevron deference. This is legal doctrine derived from a 1984 Supreme Court case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.8 In that ruling, the Supreme Court concocted a legal test as to when the judiciary defers to an administrative (executive) agency’s interpretation of laws in formulating regulations so long as they’re reasonable. Conservative judges are long critics of Chevron. It grants the executive branch far too much judicial power. Essentially, regulatory agencies become unitary actors on their own. They write regulations, enforce them, and recourse in the courts is a much higher bar.

That likely won’t fly with the vaccine mandates. OSHA certainly has stretched its jurisdiction far beyond its statutory boundaries. Additionally, the CMS mandate for healthcare workers follows a similar path. There, the Department of Health and Human Services pulls on monetary strings compelling 17 million workers into involuntary compliance. Given the congruency between the OSHA and CMS mandates, I expect Supreme Court opinions in harmony. Hopefully I’m right!

The Other Mandates

Unvaccinated federal employees who remained so after the November 22 deadline will not be fired over the holiday season. Instead, they are subject to re-education. Excuse me, “robust education and counseling efforts through the holiday season as the first step in an enforcement process.” 9 That’s Orwellian for indoctrination of holdouts, who won’t be fired around Christmas time because it’s too politically embarrassing for the Biden Administration. Politicians are cowards, what can I say?

Federal contractors fare somewhat better, but many will fall under the OSHA mandate. They will have to win at the Supreme Court in January, but then follow up with the Executive Order 14043 edict. So far, the federal contractor mandate is blocked in many states, but a final resolution won’t come for some time.

Most recently on Wednesday night, December 22, a U.S. Federal District Judge blocked the contractor mandate for Florida. 10 Last week, 10 other states succeeded in halting it as well. It’s all rather convoluted what is happening where, but things are headed in the right direction.

For the sake of our economy and freedoms, these mandates must be struck down in courts. The federal government, let alone the President himself, does not have the authority to forcefully inject private citizens with anything. It is a breach of the philosophical principles of what it means to be an American.

If the government were to be successful with these mandates, the economic consequences would be hyper-depressionary. Rampant work stoppages leading to further aggravating labor shortages which already exist. This without a doubt would break the economy. Hopefully, the Supreme Court does Biden a favor and strikes the OSHA and CMS mandates down. I don’t think anyone wants any bit of the economic disruption on display in Europe and Australia due to mandate protests.

Originally published at https://powerandmarkets.substack.com on December 23, 2021.