UPDATED: SCOTUS “stays” OSHA ETS “vax” mandate for 100+ employees companies but health workers are smacked down

The question is, where is the free exercise of religion for health care workers?

Also, where does this leave the military?

This from the opening page of the “stay” order:

  • “Applicants now seek emergency relief from this Court, arguing that OSHA’s mandate exceeds its statutory authority and is otherwise unlawful. Agreeing that applicants are likely to prevail, we grant their applications and stay the rule.”

Here’s the PDF from the SCOTUS

At the end of the decision for 100+ employees companies we read the conclusion for the “stay”:

  • “The applications for stays presented to JUSTICE KAVANAUGH and by him referred to the Court are granted. OSHA’s COVID–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402, is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the Sixth Circuit and disposition of the applicants’ petitions for writs of certiorari, if such writs are timely sought. Should the petitions for writs of certiorari be denied, this order shall terminate automatically. In the event the petitions for writs of certiorari are granted, the order shall terminate upon the sending down of the judgment of this Court. It is so ordered.”

2 Comments

Filed under Coronavirus, Free exercise of religion

2 responses to “UPDATED: SCOTUS “stays” OSHA ETS “vax” mandate for 100+ employees companies but health workers are smacked down

  1. Gina Nakagawa

    Excellent question!

  2. sanfelipe007

    I didn’t listen to the arguments presented to the court, so I can only speculate that the specific issue was not brought before the court because the question was whether Congress had granted OSHA the authority to issue a mandate. As to the CMS mandate, Justices Kavanaugh and Roberts were persuaded that Congress had given CMS authority to issue a mandate.

    In his dissent, Thomas wrote:
    ” To obtain a stay, the Government must show that there
    is (1) a reasonable probability that we would grant certiorari; (2) a fair prospect that we would reverse the judgments
    below; and (3) a likelihood that irreparable harm will result
    from denying a stay. Hollingsworth v. Perry, 558 U. S. 183,
    190 (2010) (per curiam). Because there is no real dispute
    that this case merits our review, our decision turns primarily on whether the Government can make a “strong showing” that it is likely to succeed on the merits. Nken v.
    Holder, 556 U. S. 418, 426 (2009). In my view, the Government has not made such a showing here.
    The Government begins by invoking two statutory provisions that generally grant CMS authority to promulgate
    rules to implement Medicare and Medicaid. The first authorizes CMS to “publish such rules and regulations . . . as
    may be necessary to the efficient administration of the
    [agency’s] functions.” 42 U. S. C. §1302(a). The second authorizes CMS to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs” under the Medicare Act. §1395hh(a)(1).

    The Government has not established that either provision empowers it to impose a vaccine mandate….

    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. Because the Government has not made a strong showing that Congress gave
    CMS that broad authority, I would deny the stays pending
    appeal. I respectfully dissent.”

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