Vaccine Mandates and Roads Not Taken

Another regulatory approach to mandate vaccines could have withstood judicial scrutiny.

January 24, 2022

Read this Essay (theregreview.org)


Earlier this month, a six-justice majority of the U.S. Supreme Court stayed the vaccinate-or-test mandate that the Occupational Safety and Health Administration (OSHA) imposed on employers that have more than 100 employees. On the same day, a five-justice majority refused to stay the mandate that the Centers for Medicare and Medicaid Services (CMS) imposed on organizations that are funded in part by Medicare and Medicaid. As a formal matter, the justices in each case addressed only the question of whether the government was likely to prevail on the merits of each case. But the tone of the opinions strongly suggests that the justices are unlikely to change their views if and when the Court directly addresses the merits of each case.

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Related Analysis:

What the Supreme Court’s Rejection of the Employer Vaccinate-or-Test Rule Means for Biden’s Agenda

  • In her latest essay for the Lawfare Blog, Bridget Dooling says, "the Supreme Court’s opinion did not reach the particulars of the emergency standard. Instead, the rule ran aground on the O in OSHA: occupational."