Balancing the Equities in the Vaccine Mandate Case

I have nothing to add to the controversy over the OSHA vaccination regulations. However, I would prefer that my statutory interpretation be more literalistic while my constitutional principles be clearly asserted. However, like Richard Re I was surprised by the inadequate and self-denialing reasoning of the Supreme Court when it came to equitable considerations for granting or denying a stay.

The Court said in the past that a Court will consider a request for stay after considering whether the case is likely to succeed on merits. The traditional stay inquiry requires that the damage to opposing parties be assessed and the public interest weighed. These quotes come from Chief Justice Roberts’s opinion in Nken V. Holder (2009).

Here’s how NFIB v. Department of Labor was handled by the Court:

Wiping is not an option for equities.We grant interim relief. We Employers and the States have told them that OSHA is a manDate will make it impossible for them to recover billions of dollarsInexpensive compliance fees that could cost you hundreds of dollars and cause you to lose hundreds of your thouMany workers have quit their jobs. Check out the Application No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32–33. See also 86 Fed. Reg. 61475. The Federal According to the government, this mandate will reduce costs by more than 6,500 Save lives, and save hundreds of thousands of people from hospitalizationtions. OSHA Response 83, see also 86 Fed. Reg. 61408.

These tradeoffs are beyond our responsibility. Our system government is up to the individuals who have been chosen The people by democratic processes Convenient, howeverOSHA’s regulatory power has been indisputably granted by the gress It hasn’t given the agency occupational hazards. The power to control public health in a more general manner. Not required The vaccination of 84 Million Americans.They work for companies with over 100 employeesEes falls certainly in this category.

Richard says that it seems very bizarre. When you consider the merits, what the statute states and whether OSHA’s reg. It is possible that the Court may deny any role in considering these tradeoffs. The Court has stated that when deciding whether to grant discretionary relief such as a stay it must consider the public interests.

How can we then understand this? Although the Court does not really define them, I am able to think of several options, most of which Richard has posted, but it is worth mentioning:

1. Equity is dead for stays. Perhaps the Court doesn’t believe it is within its power to grant a stay, if the movant proves right on merits. It would be an extraordinary change in law. I don’t think so, but it is important to mention it.

2. Equity isn’t dead. However, merits are king. A Court can have a clear view of the merits issue, not only that the plaintiff has probable or plausible rights but also that the Court understands the statute. One can then see how this might affect the equitable factors. While it may sound strange, it is true that “this regulation violates the law, it’s good for normative purposes, and we will leave it alone for a time.” Despite the fact that it may sound strange, this inquiry is precisely what the equitable factors require. I am concerned that any conclusion that merits prevail will lead to equity’s demise, at the very least in this particular context.

3. Congress overruled equity to stay regulations. This authority is not only based on the All Writs Act or background laws, but also from a particular provision in the APA which says:

The reviewing court may, subject to such conditions and as necessary to avoid irreparable harm, issue any necessary and proper process to delay the effective date or preserve rights or status pending the conclusion of the review proceedings.

It is possible to argue that 1 merits and 2 irreparable injuries are allowed, which I suspect the plaintiffs may have done. That’s incorrect. How about “necessary, appropriate?”? Another possibility.

4.Equity for you but not for me. A second possibility is the Court believing that its legal system is different from the lower courts. This is another one for the shocking-but-I-need-to-write-it-down category.

5. The Court may refuse to grant equity to an individual because of equity. One possibility is that equity has such a discretionary nature that the Court can refuse to exercise its discretion. It seems counterintuitive, but it is possible to rule out under a strong “permissions” model of interpretation.

6. Even though the Court did not say it, it balanced the equities.. It is possible that, in fact, the Court ruled that it was in the public’s best interest to allow the stay. It could be that it isn’t certain the vaccines are going to matter in weeks, once they have become fully effective. Perhaps it is skeptical about compliance. It might doubt that the agency has any other useful tasks it could perform if they had more time. Perhaps it’s really concerned about losing jobs. It might just be passionate libertarian sentiments. The Court, however, denies this possibility.


Some are easier to defend than others. There are likely better options that I didn’t think of. It is disappointing that neither of these options, nor any other explanation, are in the opinion. This is what makes Court’s discretion-denying rhetoric so difficult to digest.

The Court’s noncertiorari docket has seen a number of significant developments. This is obvious. This will continue, so we’ll need to have a better understanding of the law principles that regulate that docket and a Court who consistently articulates these principles.