The recent US Supreme Court decisions around mask mandates have understandably generated a great deal of media coverage and comment. Many conservatives have praised the Supreme Court’s decision to affirm the stay on the nationwide OSHA vaccine mandate. But as a lifelong prosecutor and judge, I can assure you the true and most significant factor has been overlooked. Specifically, based on the Court’s decision to vacate the stay regarding the vaccine mandate for healthcare workers (the “CMS Mandate”), the President, with no constitutional or legal authority, has been allowed to order ten million healthcare workers to receive a vaccine or risk losing their jobs and their livelihood. And while state legislatures, exercising their police powers, have imposed vaccine requirements on healthcare workers in the past, no President has imposed a nationwide mandate involving such a permanent, personal healthcare decision. Simply put, as Judge Sutton recently stated in In re MCP No. 165, unlike masks or gloves, “vaccines cannot be removed at the end of the shift.”
The underlying legal justification for overturning mask mandates on businesses is the same legal basis that should have driven a decision to roll back a mask mandate for our health care workers. In both the OSHA and the CMS cases, the issue was not whether vaccines were a wise or effective measure against the spread of COVID-19. Rather, the issue was simply whether the President has the constitutional authority, through executive branch administrative agencies, to impose nationwide vaccine mandates. In the OSHA case, the Court held, by a vote of 6-3, that because Congress never clearly delegated such authority to the President, he lacked the authority to impose such a mandate. However, in the CMS case, Justices Roberts and Kavanaugh switched their votes on the grounds that Congress had delegated such authority to the President based on a hodge-podge of Social Security statutes. But these statutes provide no such authority. Indeed, the purported delegation for the CMS mandate was less clear and more strained than the statutes offered to justify the OSHA mandate. So, what explains the puzzling switch of two purportedly conservative Justices on essentially the same issue?
It is difficult to avoid the conclusion that Roberts and Kavanaugh, at least at some level, sought to appease the public’s concern over COVID. Thus, in effort to “soften” the public’s reaction to the OSHA decision, they justified the switch by relying on the purportedly stronger policy arguments for mandating vaccines for healthcare workers to protect hospital patients from COVID. But while politics and the will of the public has rightfully driven decision-making in our Executive and Legislative branches of government, our Judiciary was set up by our Founding Fathers to make judgements based on the law and precedent. The Supreme Court does not have the authority to determine whether vaccine mandates are good policy, nor may the Court violate the Constitution in the interests of promoting political harmony or the popularity of the Court. As Justice Scalia once stated, “If you’re going to be a good and faithful judge, you have to resign yourself to the fact you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.”
With these recent decisions around mask mandates, Justices Roberts and Kavanaugh have dangerously broken through that critical differentiation, opening the Court up to the influence of the day’s ever-changing political environment. Judges must have the courage and resolve to enforce the Constitution, even when the results may be unpopular. It may appease some that the OSHA stay was upheld, but it was denied for healthcare workers. But either way, the result is the same: a precedent has been set by the Court allowing the President to use any crisis labelled a “medical emergency” to expand his power. The consequences of this decision will inflict grave damage to the rule of law. As Justice Jackson stated in his dissent in Korematsu v. United States, when the Court permits another branch to set aside constitutional protections to address emergencies, such decisions lie “about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”
Of course, looming in the background is the Supreme Court’s pending abortion decision in Dobbs v. Jackson Women’s Health Organization. There are sound legal grounds set forth in Dobbs for modifying, if not overruling Roe v. Wade, and allowing the legislative branch to decide the abortion issue. But mark my words, the Supreme Court, led by Justices Roberts and Kavanaugh, will land on a more muddled, middle of the road, politically crafted decision that attempts to please everyone. They have shown their hand in the CMS case.
Andrew W. Gould was appointed as a Justice to the Arizona Supreme Court in 2017 after serving 5 years on Division One of the Arizona Court of Appeals. He retired from the Supreme Court in March 2021. Prior to his appointment to the Court of Appeals, Justice Gould spent 11 years as a Judge of the Superior Court in Yuma County, where he served as both Associate Presiding Judge and Presiding Judge.
Andrew received his J.D. from Northwestern University School of Law in 1990. He began his legal career in Phoenix, Arizona, practicing in the field of civil litigation. In 1994, he became a Deputy County Attorney, prosecuting major criminal cases for Yuma and Maricopa Counties. He served as Chief Civil Deputy for the Yuma County Attorney’s Office from 1999-2001. Justice Gould has previously served on the Arizona Supreme Court Commission on Technology, as the President of the Arizona Judges’ Association, and has taught at the Judicial Conference and New Judge Orientations.
Vaccines should always be voluntary and never be forced. But apparently, the City of Phoenix doesn’t care about freedom.
Last month, the city announced that its employees will have until January 18, 2022 to be fully vaccinated against COVID-19. And it doesn’t even matter if they work from home. The new policy lacks any sort of exemption for that because, of course, these mandates aren’t based on commonsense.
But don’t worry. Employees will receive $75 as a “thanks” for their compliance. And with rampant inflation and rising oil prices, that should cover at least one tank of gas. Maybe.
The city claims that its simply following President Biden’s vaccine mandate for federal contractors. But this just further shows how comfortable Phoenix is with such a blatant abuse of power.
Yet another business advocacy group is challenging President Joe Biden’s continued calls for employers to implement COVID-19 vaccination mandates in the face of constitutional challenges.
“This mandate is not a small ask of America’s employers. Businesses are just recovering from the pandemic. They are dealing with the highest inflation in over 30 years, and they are struggling to deal with a supply chain and labor shortage crisis,” Alfredo Ortiz of the Job Creators Network wrote to Biden. “Now is the worst time to deputize them as the health police.”
The Job Creators Network is a petitioner in one of the federal court challenges to OSHA’s vaccination mandate for employers with 100 or more employees. That case and others federal challenges to Biden’s mandates are being transferred by order of the U.S. Supreme Court to the U.S. Court of Appeals for the 6th Circuit so all such cases can be heard in one court.
Such lawsuits should not be necessary, Ortiz argues, but even more concerning is the fact White House Press Secretary Jen Psaki publicly stated last week that “nothing has changed” with the mandate timelines in the face of recent court orders.
The result, according to Ortiz, is that the Biden Administration is putting small business job creators in an “untenable position” of following the White House directives or following the court rulings.
“Despite two recent federal court rulings staying the employer vaccine mandate, the White House continues to willfully ignore the judiciary and call on businesses to continue implementing the rule by January 4, 2022, as if these judicial decisions never occurred,” Ortiz wrote to Biden. “We expect the White House to respect and listen to the judiciary rather than barnstorming ahead and bullying businesses to comply with this rule whose legal fate is in serious jeopardy.”
Small business owners in every community across America are caught in the middle and paying the price, Ortiz wrote.
“This conflicting guidance is unfair to small businesses simply trying to get their businesses back to pre-pandemic levels,” he said. “By following the White House guidance, they are incurring expenses and time-consuming setup costs.”
City of Phoenix employees will have until January 18, 2022, to be fully vaccinated against COVID-19. The new policy doesn’t offer an exemption for those working remotely. The city explained in its letter to employees that it was complying with President Joe Biden’s vaccine mandate for federal contractors, due to the number of contracts held by the city.
As thanks for their compliance, the city will give the vaccinated employee $75. The cash perk was initially used as an incentive this past year. Assuming every one of their over 14,000 employees remains on staff and gets vaccinated, then the city will hand out a total of over a million dollars. As of their latest reports, the city has handed out over 6,900 of their compliance cash.
Phoenix Councilman Sal DiCiccio warned in an interview with KTAR that this mandate would only make the city lose more police officers at a time when their law enforcement is critically manned. He also challenged the city’s rationale that a sweeping mandate was required because they receive federal funds. DiCiccio asserted that the city of Phoenix isn’t a federal contractor.
“I’ve already sent a letter to the city manager asking him to identify exactly which contracts the city of Phoenix has,” said DiCiccio. “I can tell you police, fire and some other personnel with the city of Phoenix are not contractors – that’s a bunch of BS.”
DiCiccio also insisted that the main point of the mandate was to target first responders.
“It’s meant to attack them at various levels: [to] attack them personally, attack their families and now go after them this way,” said DiCiccio.
The councilman’s remarks reflect on the fact that the lowest vaccination rates in the Valley are among police officers and firefighters. Tucson’s vaccine mandate for all city employees – announced in August – hit those first responders the hardest.
As the city revealed this latest policy, companies around Phoenix have been advertising that they are hiring with “no vaccine required.”
City employees may request religious or medical exemptions by December 31 – New Year’s Eve.
In a surprise reversal, the Occupational Safety and Health Administration (OSHA) is suspending its recently announced requirement that employers make a record of an employee’s adverse reaction to an employer-mandated COVID-19 vaccination.
In May, the U.S. Department of Labor and OSHA advised employers it would consider an employee’s adverse reaction as a “reportable incident” if the vaccination was required to obtain or keep employment, or to avoid repercussions such as a negative performance rating.
An adverse reaction would have to involve time away from work, medical treatment beyond basic first aid, restricted work duties, or even a job transfer in order to be recorded by the employer.
But OSHA has already changed its policy, according to new information on its website. The priority now is for federal agencies to encourage COVID-19 vaccinations.
“OSHA does not wish to have any appearance of discouraging workers from receiving COVID-19 vaccination, and also does not wish to disincentivize employers’ vaccination efforts,” the website states. “As a result, OSHA will not enforce its recording requirements to require any employers to record worker side effects from COVID-19 vaccination through May 2022.”
The backtracking by OSHA officials is seen as a response to “unprecedented” political pressure from the White House, according to Liberty Counsel chairman Mat Staver.
“OSHA’s suspension of the recording requirement so as not to discourage experimental COVID shots reveals that the Biden administration could care less about the collateral damage being caused by the COVID shots,” Staver commented last week. “The people can see this biased agenda. They are not stupid.”
Many civil liberties groups point to the fact the current experimental COVID-19 vaccines are only approved under an Emergency Use Authorization and therefore its use is not to be mandated.
Whether an employee in Arizona can seek recourse through the courts or a workers’ compensation claim after falling ill from an employer-required vaccination remains unclear.