Scathing Dissent & a Warning About Future Executive Behavior

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“It may have a lasting effect on Executive Branch behavior.”

“Today’s decision will ripple through administrative agencies’ future decision making,” Alito warned. “The Executive Branch already touches nearly every aspect of Americans’ lives.”

While the Supreme Court thankfully blocked the unconstitutional OSHA mandate on private businesses with 100 or more employees, it permitted a more limited mandate that orders medical facilities that receive federal funds to force their employees to be vaccinated.

The decision squeaked by with a 5-4 vote. Chief Justice Roberts and Justice Brett Kavanaugh swung to the left.

The rebuttal was scathing and powerful and came with a warning about future executive behavior.

“Justice Thomas, with whom Justice Alito, Justice Gorsuch, and Justice Barrett join, dissenting,” Thomas’s opinion states.

Background

“Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID–19 vaccine. Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements.”

“As a result, the Government has effectively mandated vaccination for 10 million healthcare workers,” the opinion continues. “Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Because the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay.”

The Dissent

“The Government has not made a strong showing that this [cited] hodgepodge of provisions authorizes a nationwide vaccine mandate,” Thomas stated. “We presume that Congress does not hide “fundamental details of a regulatory scheme in vague or ancillary provisions.”

“Yet here, the Government proposes to find virtually unlimited vaccination power, over millions of healthcare workers, in definitional provisions, a saving clause, and a provision regarding long-term care facilities’ sanitation procedures,” he went on. “The Government has not explained why Congress would have used these ancillary provisions to house what can only be characterized as a ‘fundamental detail’ of the statutory scheme. Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one.”

“Nonetheless, even if I were to accept that Congress could have hidden vaccine-mandate power in statutory definitions, the language in these ‘health and safety’ provisions does not suggest that Congress did so,” Thomas added.

“For its part, the Court does not rely on the Government’s proffered statutory provisions,” Thomas noted. “Instead, it asserts that CMS possesses broad vaccine-mandating authority by pointing to a handful of CMS regulations. To begin, the Court does not explain why the bare existence of these regulations is evidence of what Congress empowered the agency to do. Relying on them appears to put the cart before the horse.”

The Sweeping Power

“Regardless, these regulations provide scant support for the sweeping power the Government now claims,” Thomas argued.

Justice Alito concurred with Justice Thomas’s dissent and then warned of future abuses of executive power.

“I join Justice Thomas’s dissent because I do not think that the Federal Government is likely to be able to show that Congress has authorized the unprecedented step of compelling over 10,000,000 healthcare workers to be vaccinated on pain of being fired.” Alito wrote. “The support for the argument that the Federal Government possesses such authority is so obscure that the main argument now pressed by the Government—that the authority is conferred by a hodgepodge of scattered provisions—was not prominently set out by the Government until its reply brief in this Court.”

“Before concluding that the Federal Government possesses this authority, we should demand stronger statutory proof than has been mustered to date,” Alito added. “But even if the Federal Government has the authority to require the vaccination of healthcare workers, it did not have the authority to impose that requirement in the way it did. Under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people.”

“Today, however, most federal law is not made by Congress,” Alito added. “It comes in the form of rules issued by unelected administrators. In order to give individuals and entities who may be seriously impacted by agency rules at least some opportunity to make their views heard and to have them given serious consideration, Congress has clearly required that agencies comply with basic procedural safeguards.”

“Although today’s ruling means only that the Federal Government is likely to be able to show that this departure is lawful, not that it actually is so, this ruling has an importance that extends beyond the confines of these cases,” Alito stated. “It may have a lasting effect on Executive Branch behavior.”

“Today’s decision will ripple through administrative agencies’ future decision making,” Alito warned. “The Executive Branch already touches nearly every aspect of Americans’ lives.”


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