January 29, 2023

Volume XIII, Number 29


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January 26, 2023

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The High Court Stays the OSHA Mandate But Upholds the CMS Mandate

The decision we’ve all been waiting for finally arrived today.  In two separate opinions, the Supreme Court, as appeared likely from oral argument, stayed the OSHA mandate but declined to stay the CMS mandate.

For the OSHA mandate, the Court issued a per curiam opinion chiefly holding that the mandate flunked the major questions doctrine as Congress did not clearly delegate OSHA authority to issue the mandate.  Justice Gorsuch, joined by Justice Thomas and Justice Alito, wrote a separate concurring opinion.  That separate opinion emphasized the role that the major questions doctrine plays in avoiding unconstitutional delegations of power from Congress to agencies.  Justice Breyer, Justice Sotomayor and Justice Kagan wrote a joint dissenting opinion.  According to those justices, the mandate clearly fell within the ambit of the agencies’ delegated power from Congress under the OSH Act.

The Court likewise issued a per curiam opinion for the CMS mandate, which it upheld.  The Court agreed with the Government that the CMS mandate “falls within the authorities that Congress has conferred upon” the agency.  Justice Thomas wrote a dissenting opinion joined by Justices Alito, Gorsuch, and Barrett.  According to Justice Thomas, the Government had not established that any statute empowers it to impose a vaccine mandate.  Justice Alito penned his own dissent, joined by Justices Thomas, Gorsuch, and Barrett.  Justice Alito wrote that even if the Government had the statutory authority to require vaccination of healthcare workers, it did not have the authority to bypass normal notice and comment procedures in issuing the mandate.

Although today’s stay decisions are only supposed to be about temporary relief while the Court considers the merits, today’s decisions essentially resolve the merits for each case.  We will discuss both decisions — and their implications — more fully in future posts.  For now, happy reading to all of you who have yet to dive into the opinions!

© Copyright 2023 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 14

About this Author

Shams Hirji Appellate Attorney Squire Patton Boggs Cincinnati

Shams Hirji focuses his practice on appeals and critical motions. He has briefed numerous appeals in federal and state courts and has presented oral argument in the Sixth Circuit, the Ohio Supreme Court and the Ohio Courts of Appeals. Shams also maintains an active trial-court practice, ensuring that complex legal issues are resolved in favor of clients as early as possible and, if necessary, preserved for appellate review.

Before joining the firm, Shams served as a deputy solicitor general in the Office of the Ohio Solicitor General. As deputy solicitor general,...

Colter Paulson Appellate Litigation Attorney Squire Patton Boggs Cincinnati, OH
Of Counsel

Colter Paulson has significant litigation experience, specializing in appellate litigation. He has successfully argued appeals before federal and state appellate courts and has extensive experience leading teams of associates in complex litigation, including multidistrict litigation and class actions.

Colter represents clients in litigation involving consumer financial services, medical devices, healthcare and manufacturing. His international experience includes cross-border litigation on behalf of clients in Asia, South and Central America, and the Middle East. His experience also...