In contrast to the Occupational Safety and Health Administration (OSHA) vaccine case described last week, the Supreme Court of the United States on Jan. 13 upheld, per curiam, the rule of the secretary of health and human services in the health care workers case Biden v. Missouri, that, “… in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff — unless exempt for medical or religious reasons — are vaccinated against COVID-19.”

Two district courts had enjoined the enforcement of the secretary’s rule. The government moved to stay those injunctions. The government won; the injunctions were stayed by the Supreme Court, so the rule could go into force, which required about half of the unvaccinated health care workers be vaccinated by last Thursday. (New York Times, Jan. 27, 2022)

It is interesting to note that the rule approved by the court regarding health care workers was more coercive than the rule disapproved of in the OSHA case, where there was a nonvaccine option of weekly testing and masking. But, in the OSHA case, the agency went beyond its authority; here, it did not.

In both the OSHA and health care cases, an emergency procedure was used where the notice and comment stages were skipped. Regarding the health care case, Justice Samuel Alito said in dissent, “… an agency can regulate first and listen later and then put more than 10 million health care workers to the choice of their jobs or an irreversible medical treatment.” Was this coercion constitutional under the spending cause? The answer will be yes.

The Supreme Court concluded that Congress had given the secretary the authority to so act. The secretary had the general statutory power, “… to promulgate regulations ‘as may be necessary to the efficient administration of the functions with which (he) is charged.’”

The most basic function is to “protect their patients’ health and safety.” As a condition of receiving Medicare and Medicaid funds, the secretary established a list of detailed conditions, including the vaccine. The majority of the court acknowledged the authorities for the secretary’s actions.

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The secretary found that the rule was “necessary.” He believed the “spreading” of the COVID-19 virus was a major concern, especially when patients were often elderly and in poor health. The court wrote: “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

Also, favoring the secretary’s position was past practice: ”… the secretary routinely imposes conditions of participation that relate to the qualifications and duties of health care workers themselves.” That the vaccine mandate went further than anything before reflects the unprecedented size of the pandemic problem. “In any event, there can be no doubt that addressing infection problems in Medicare and Medicaid facilities is what he (the secretary) does.”

Moreover, the court cited the “overwhelming support” of the secretary’s rule by the health care workers and public health organizations: “… their support suggests that a vaccine requirement under these circumstances is a straightforward and predictable example of the ‘health and safety’ regulations that Congress has authorized the Secretary to impose.”

Thus, the court concluded that, “the secretary did not exceed his authority in requiring that, in order to remain eligible for Medicare and Medicaid dollars, the facilities covered by the interim rule must ensure that their employees be vaccinated against COVID-19.”

This reminds me of a permutation of the Golden Rule: the one with the gold rules. This is the spending clause of Congress in our federalism. Congress takes the biggest bite out of the tax base and then offers some of it back in the form of laws with conditions or regulations. These laws are supreme under the supremacy clause of the Constitution, Article VI, Paragraph 2. This is a form of benign coercion, probably, for our own good. If the coercion becomes too bad, it can be prohibited as unconstitutional, at least for the states, under the principles of National Federation of Independent Business v. Sebelius (2012), yet another story in our constitutional law.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Congressional spending power, health care vaccine case