Vaccination “Irreversible” And “Cannot Be Undone At The End Of The Workday,” Warns Supreme Court

by Atty. Emmanuel S. Tipon

Supreme Court Justice Samuel Alito, a fellow Yale Law School graduate, concluded his dissenting opinion in Biden v. Missouri, 595 U.S. ___ (01/13/2022) with the warning that the administration was putting “more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment.”

The case arose when Secretary of Health and Human Services which administers the Medicare and Medicaid programs that provide health insurance for millions of elderly, disabled, and low income Americans, announced in November 2021, following President Joe Biden’s earlier announcement, that in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff – unless exempt for medical or religious reasons – are vaccinated against COVID-19.

Two groups of States – one led by Louisiana and one by Missouri – sued to challenge the rule. The federal district courts found the rule defective and issued preliminary injunctions against its enforcement. The Government moved to stay the injunctions but the Courts of Appeals denied it. The Government appealed to the Supreme Court. Five justices granted the stay of the injunctions while four justices, including Justice Alito, dissented.

In a per curiam opinion (nobody wanted to sign it), the majority said that Congress has authorized the Secretary to impose condi­tions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” 42 U. S. C. §1395x(e)(9).

COVID–19 is a highly contagious, dangerous, and—especially for Medicare and Medicaid patients—deadly disease. The Secretary of Health and Hu­man Services determined that a COVID–19 vaccine man­date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.

Justice Thomas along with Justices Alito, Gorsuch, and Barrett dissented, saying that the statutes provide for carrying out the “administration” of Medicare and Medicaid but says nothing about imposing a vaccine mandate.

The rule compels millions of healthcare workers to undergo an unwanted medical procedure that “cannot be removed at the end of the shift.” It requires millions of healthcare workers to choose between losing their liveli­hoods and acquiescing to a vaccine they have rejected for months.

Vaccine mandates also fall squarely within a State’s police power, see Zucht v. King, 260 U. S. 174, 176 (1922), and, until now, only rarely have been a tool of the Federal Government.

If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly.

It did not. These cases are not about the efficacy or importance of COVID–19 vaccines.

They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a “medical procedure they do not want and cannot undo”.

Justice Alito said that 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, but today most federal law comes in the form of rules issued by unelected administrators.

However, Congress required these agencies to provide public notice of proposed rules and to give the public an opportunity to comment. But in these cases, the government agency did not do it.

OSHA cannot issue vaccine mandate
Another COVID-19 vaccine opinion released the same day by the Supreme Court, also per curiam, is National Federation of Independent Business v. Department of Labor, 595 U. S. ____ (01/13/2022).

The Secretary of Labor, acting through the Occupational Safety and Health Administration (OSHA), issued a regulation requiring that covered workers re­ceive a COVID–19 vaccine, except workers who obtain a medi­cal test each week at their own expense and on their own time, and also wear a mask each workday.

Employers must enforce the mandate. It applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. The regulation otherwise operates as a” blunt in­strument.”

It draws no distinctions based on industry or risk of exposure to COVID–19. Thus, most lifeguards and linemen face the same regulations as do medics and meatpackers.

Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals. The Fifth Circuit initially entered a stay. But when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect.

The Supreme Court stayed the rule, saying that the challengers were likely to prevail in their argument that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful.

The Court said: “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided.”

The law does not authorize the Secretary’s mandate. The law empowers the Secretary to set workplace safety standards, not broad public health measures.

It is a significant encroachment into the lives—and health—of a vast number of employees. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

The Court pointed out that although COVID–19 is a risk that occurs in many workplaces, it is not an oc­cupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.

That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable dis­eases.

Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly ex­pand OSHA’s regulatory authority without clear congres­sional authorization.

The Court rejected the dissenting opinion’s contention that OSHA’s mandate is compara­ble to a fire or sanitation regulation imposed by the agency, saying that a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically im­posed.

A vaccination “cannot be undone at the end of the workday.”

ATTY. TIPON was a Fulbright-Smith Mundt scholar to Yale Law School where he obtained a Master of Laws degree. He has a Bachelor of Laws degree from the University of the Philippines. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for Thomson Reuters and columns for Filipino-American newspapers. He and his son Noel, principal attorney of Tipon Law Office, co-host “The Tipon Report,” Honolulu’s most witty, informative, and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration, criminal defense, and other federal laws. Tel. 808-225-2645. E-mail: Website:,,

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