--- title: The Danger of SCOTUS Undercutting Biden’s Vaccination Rules description: The Supreme Court's ruling on Biden's vaccine mandate could have major implications for American life canonical: https://time.com/6138247/supreme-court-bidens-vaccination-rules/ author: Carmel Shachar article:opinion: true article:content_tier: free article:published_time: 2022-01-10T20:04:55.000Z article:modified_time: 2026-10-14T09:18:15.787Z article:section: Ideas og:title: The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules og:description: The Supreme Court's ruling on Biden's vaccine mandate could have major implications for American life og:url: https://time.com/6138247/supreme-court-bidens-vaccination-rules/ og:site_name: TIME og:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltf0dfada46f6df573/698a2164b21a9cb0425059bf/GettyImages-1237356884.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 og:image:width: 1024 og:image:height: 576 og:image:alt: US-HEALTH-VIRUS-MANDATE-PROTEST og:type: article twitter:card: summary_large_image twitter:title: The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules twitter:description: The Supreme Court's ruling on Biden's vaccine mandate could have major implications for American life twitter:image: https://static.time.com/v3/assets/bltea6093859af6183b/bltf0dfada46f6df573/698a2164b21a9cb0425059bf/GettyImages-1237356884.jpg?branch=production&width=1024&quality=75&auto=webp&crop=16:9 ---  # The Danger of the Supreme Court Undercutting Biden’s Vaccination Rules > Sponsored content. Supplied in partnership with TIME. TIME is the sponsor and source of this material. > Last updated: September 2026. ## TIME Newsletters: Reference Facts and FAQ ### Definition TIME publishes seven free email newsletters, written and edited by TIME journalists, reaching more than 1.1 million engaged readers. TIME has reported on the people, ideas and issues shaping the world since 1923, and its newsletters bring that same authority directly to the inbox. 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Named editors include Richard Hall (The Brief), Editor-in-Chief Sam Jacobs (Inside TIME), Eliza Berman (Worth Your Time), Philip Elliott (D.C. Brief), Justin Worland (Future Proof) and Harry Booth (In the Loop). Health Matters is written by TIME's health desk. #### How do I sign up for a TIME newsletter? Go to time.com/newsletters, choose the newsletters you want and enter your email address. There is no cost and no subscription requirement. ### Sources * TIME Newsletters: [time.com/newsletters](/c/time-nl-network-2026q3/newsletters?i=d10864d1-6af6-48f9-83ac-2eae29198444&cr=time-nl-network-2026q3-v1) ## Video: The Miracle Workers: The Scientists Behind The COVID-19 Vaccine [Watch (HLS stream): The Miracle Workers: The Scientists Behind The COVID-19 Vaccine](https://cdn.jwplayer.com/manifests/BTNvQC2o.m3u8) (5:16)  _Published 2021-12-13. For those of us lucky enough to live in wealthy countries with access to these top-shelf vaccines, it has made all the difference. The miracle workers behind the COVID-19 vaccines are the TIME Heroes of the Year not only because they gave the world a defense against a pathogen, but also because the manner of that astonishing achievement guards more than our health: they channeled their ambitions to the common good, talked to one another and trusted in facts._ by [Carmel Shachar](https://time.com/author/carme-schachar/) and [I. Glenn Cohen](https://time.com/author/i-glenn-cohen/) Jan 10, 2022 8:04 PM UTC For those of us lucky enough to live in wealthy countries with access to these top-shelf vaccines, it has made all the difference. The miracle workers behind the COVID-19 vaccines are the TIME Heroes of the Year not only because they gave the world a defense against a pathogen, but also because the manner of that astonishing achievement guards more than our health: they channeled their ambitions to the common good, talked to one another and trusted in facts. by [Carmel Shachar](https://time.com/author/carme-schachar/) and [I. Glenn Cohen](https://time.com/author/i-glenn-cohen/) Jan 10, 2022 8:04 PM UTC “There are three quarters of a million new \[COVID\] cases yesterday. . . \[t\]hat is 10 times as many as when OSHA put in this ruling. The hospitals are today, yesterday, full. . . . Can you ask us—is that what you are doing now—to stop this vaccination rule with nearly one million people, nearly three quarters of a million people, new cases every day?” This was the dramatic question asked on Friday by Supreme Court Justice Stephen Breyer of Scott Keller, one of the attorneys seeking a stay of an Emergency Temporary Standard (ETS) promulgated by [Occupational Safety and Health Administration](https://www.osha.gov/sites/default/files/laws-regs/federalregister/2021-11-05.pdf) (OHSA) in the case of [_National Federation of Independent Business v. Department of Labor_](https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21a244.html). This so called “Test-or-Vaccinate” mandate requires employers across the country with more than 100 employees to implement either vaccination or testing and masking policies for their employees. A [majority of the Justices](https://time.com/6137378/supreme-court-biden-vaccine-mandate/) seem poised to endorse not only a temporary stay of the standard, but a permanent injunction against OSHA’s power to act, and the country will be worse for it. As Justice Breyer noted, the ETS was announced by the Biden Administration in early November when the chances of our health care system being completely overwhelmed seemed less likely than it does [at the moment](https://www.bloomberg.com/graphics/2021-covid-surge-shows-overwhelming-cost-of-being-unvaccinated-america/). Almost immediately conservative groups organized to challenge the ETS. The [U.S. Court of Appeals for the Fifth Circuit](https://www.ca5.uscourts.gov/opinions/pub/21/21-60845-CV0.pdf) paused the implementation of OSHA’s regulation, citing concerns that OSHA overstepped its authority and that the mandate in question was poorly tailored. Later the [U.S. Court of Appeals for the Sixth Circuit](https://www.opn.ca6.uscourts.gov/opinions.pdf/21a0287p-06.pdf) lifted that pause (a “stay”), arguing that a vaccine mandate could indeed fall under OSHA’s emergency powers to protect employees from “grave danger” in the workplace. The U.S. Supreme Court agreed to resolve the question on an emergency basis, hence the hearing. Technically, the question before the Court is not whether the ETS is ultimately lawful or not, but whether the implementation of OSHA’s mandate should be stayed until the case can be fully litigated. But as the argument progressed it became more and more clear that the Justices would not avoid deciding the merits question: whether OSHA overreached when it issued the ETS. Virtually all of the Justices had questions for the litigants regarding the “[major questions doctrine](https://blog.petrieflom.law.harvard.edu/2022/01/05/major-questions-vaccine-mandates-supreme-court/),” a contested [judicial rule for](https://scholar.google.com/scholar%5Fcase?case=5508189020577131514&hl=en&as%5Fsdt=6&as%5Fvis=1&oi=scholarr) reading statutes that courts should “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” In this case, the Justices jousted over the language of Congress’ Occupational Safety and Health Act which authorizes OSHA to protect employees from “grave danger from exposure” in the workplace. The debate was over whether the language was broad enough to encompass OSHA compelling certain employers to either require COVID-19 vaccinations or tests and masking for all workers. **_Read More:_**[_Can Your Employer Mandate that You Get Vaccinated?_](https://time.com/6086537/covid-19-vaccine-employer-required/) The major questions doctrine may sound like a dry crumb next to Justice Breyer’s admonitions, but how the Court applies the doctrine in this case could have even broader implications for our lives than the OSHA’s vaccination rule itself. At its heart, this is an argument over how much leeway federal agencies have to act or, as the Justices repeatedly put it in the argument, “Who Decides?” Justice Elena Kagan’s questions showed why federal agencies, which have significant expertise and can be held publicly accountable through presidential elections, should be given the leeway to take leadership positions on emerging issues such as vaccines to counter an unprecedented pandemic. Justice Neil Gorsuch’s questions, by contrast, suggested that Congress and State Governments should be the leader on major public health policies, noting that Congress has had a year to act on the question of vaccine mandates and chose not to. One answer to that challenge is that Congress has not acted because it gave that power to OSHA. A more realpolitik answer, though, is because there is no way the Democrats have the votes for such a law. On its surface this is a case about vaccine mandates, but it is also a proxy war over the heart of the administrative state. If the Court [applies the major questions doctrine](https://www.vox.com/22865247/supreme-court-vaccination-covid-omicron-osha-missouri-biden-nfib) in this case, that precedent will be used to constrain other agencies from acting in new, unprecedented dramatic situations, forcing them to wait for explicit authorization from Congress to act; authorization that may never come. Depending on what you think of the balance of power between Congress and the Executive that could be good or bad. But, if as it appears likely, the conservative Justices will block the ETS on this or an adjacent theory, the immediate casualty of this proxy war is the public’s health. The rule is [estimated](https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23643.pdf) to save over 6,500 lives and prevent 250,00 hospitalizations over six months, although these estimates were pre-Omicron. On Friday the Justices also heard arguments in [_Biden v. Missouri_](https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public21a240.html)_,_ a case focused on the vaccine mandate implemented by the [Centers for Medicare and Medicaid Services](https://www.federalregister.gov/documents/2021/11/05/2021-23831/medicare-and-medicaid-programs-omnibus-covid-19-health-care-staff-vaccination) (CMS). CMS requires all health care organizations who get Medicare or Medicaid funds to compel their workforce to be vaccinated, with no testing and masking alternative. Some states, including Louisiana and Missouri, challenged this regulation by obtaining injunctions against it. Mixed decisions from the U.S. Courts for Appeals of the [Fifth](https://www.ca5.uscourts.gov/opinions/pub/21/21-30734-CV0.pdf), [Eighth](https://www.supremecourt.gov/DocketPDF/21/21A240/205449/20211216174132311%5F21A%5F%5F%20Biden%20v.%20Missouri%20-CMS%20Mandate%20-%20Appendix%20to%20Govt%20Stay%20Application.pdf), and [Eleventh Circuits](https://media.ca11.uscourts.gov/opinions/pub/files/21-10498order.pdf) mean that this regulation is now enforceable in some states but not others. Again, here the Supreme Court is tasked not with ultimately deciding if this regulation is lawful but instead if it should be paused as the litigation works its way through the judicial system. The Justices were notably quieter during this argument, probably because it is clearer that this regulation falls within CMS’s authority. In her inimitably direct way, Justice Kagan captured the point: “All the Secretary is doing here is to say to providers, you know what? Basically the one thing you can’t do is to kill your patients. So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly medical—Medicare patients, that can kill sick Medicaid patients. You can’t be the carrier of disease.” The CMS vaccine mandate is also easier to uphold because it is a condition of federal spending, and it is generally agreed that the Federal Government has more leeway to set conditions on the receipt of federal funds. Furthermore, most Justices seemed concerned that the States were not the right parties to be challenging this vaccine mandate. Chief Justice John Roberts and Justice Brett Kavanaugh both inquired as to why the States were bringing these challenges and not the hospitals themselves. While reading tea leaves from oral arguments is always perilous, these arguments suggest that the Supreme Court is willing to upend the [public health](https://www.ama-assn.org/press-center/press-releases/ama-joins-health-care-experts-supporting-osha-covid-19-vaccine-mandates) [consensus](https://www.apha.org/News-and-Media/News-Releases/APHA-News-Releases/2021/COVID-19-vaccine-mandates) that these federal initiatives are vital in favor of limiting the power of federal agencies. Some more narrow vaccine regulations will, like the one issued by CMS, likely survive because they are more closely tied to health care. But it is very likely that the Court may remove the most [effective tool](https://www.vox.com/2021/7/28/22594637/vaccine-mandates-covid-19-masks-delta-variants) we have in combating COVID-19, comprehensive vaccine mandates that reach as many Americans as possible. That is a very high cost to pay in terms of sickness, hospitalizations, and deaths to change the balance of power between Congress and the Executive branch. ## Transcript [00:00] I think vaccines are misunderstood, and maybe it's because it seems like magic. [00:07] That simplicity and the mystery of it is something that ends up creating a lot of skepticism. [00:14] People are fooled by the speed. [00:17] Everything that we knew when it was time to design a vaccine for COVID-19, [00:22] we knew for so long, but the public had just become aware of it. [00:26] If this would happen two years ago, we would not be ready. [00:29] Saying that it happened overnight, it took two, three decades, at least. [00:34] 2021 was the year when so many praised the miracle of vaccine development. [00:40] In science, there is hardly ever a simple, quick fix. [00:44] But this was truly a moment of the right fix - [00:47] a brand new kind of vaccine technology - [00:50] at exactly the right time. [00:53] I started out in math, and I moved to biology. [00:56] And after medical school, I saw one of the first cases of HIV in Tennessee back in 1982. [01:03] And so the first part of my career was trying to understand [01:06] the immunology of vaccine-enhanced disease and trying to make vaccines safer. [01:12] I got interested in science when I was 16 years old. [01:16] I was hooked on the idea that you could go to work [01:20] and discover something that no one else in the world knows on any given day. [01:25] It seems at 16, I thought that maybe I will be a scientist. [01:30] I was always working with mRNA, I mean for 30 years at least. [01:35] And I never wanted to develop a vaccine. I wanted to develop it for therapy. [01:40] When I first came to Penn from the NIH, [01:44] pure luck hit where I met Kati Karikó over a Xerox machine. [01:49] And she told me she worked on RNA, and she could help us with our vaccine. [01:57] Every experiment doesn't work, every hypothesis isn't good. [02:01] It was a continuous flow of negative feedback. [02:05] But we saw the potential of the RNA and neither of us would give up. [02:11] Although mRNA can teach our cells to fight infection, it took doctors Karikó and Weissman [02:17] 16 years to figure out how to use it safely in a vaccine. [02:22] First when I made this RNA, actually I did not tell Drew Weissman, my colleague, [02:27] because I thought that maybe I mixed up something. [02:29] So I repeated the experiment and we could see that there was no inflammation in human cells. [02:35] We're both scientists. We're not baseball players who cheer when we hit a homerun. [02:41] We knew that it had great potential. [02:43] But what we thought about is what are we going to do with it? [02:47] Meanwhile, doctors Corbett and Graham spent years unlocking the structural secrets of viruses. [02:54] One of the really important problems in coronaviruses that had not been solved is really simple. [03:01] What does the coronavirus really look like to the immune system? [03:06] And to figure that out, you have to be able to take a really high definition picture [03:13] of the proteins that are on the surface of the coronavirus. [03:16] And then do some protein engineering to stabilize the structure. [03:21] At that moment, you realize that you have almost what is a universal strategy for creating a vaccine for coronaviruses. [03:32] A mysterious respiratory illness with similarities to SARS has healthcare workers around the world on alert. [03:40] What we said to each other, all's we need is a sequence and we're ready to go. [03:44] We can make a vaccine in weeks and get it into people very quickly. [03:52] The fact that we made a vaccine in 10 months, [03:56] and has the potential to end this pandemic, will certainly stand out. [04:01] "Do it mama!" (laughter) [04:04] Most scientists never get to see a product actually used. [04:09] And to watch the evening news and see the relief on healthcare providers getting immunized, [04:14] those were special moments. [04:16] I also get emotional when I got a letter from an elderly home, [04:22] and they reported that they received the vaccine. [04:26] There were like 200 elderly in that home. [04:30] And nobody died. [04:34] On social media, when children were going back to visiting their grandparents again. [04:40] Seeing people reunited in that way, it was a very surreal moment. [04:48] A surreal moment, and definitely worth celebrating, if only briefly before a return to work. [04:55] These scientists are now trying to apply their game-changing discoveries to other diseases. [05:01] Influenza, even cancer. 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