The Supreme Court isn’t sure about Biden’s rules on workplace vaccines.
Biden’s workplace vaccination regulation has been met with skepticism by the Supreme Court.
The conservative majority on the Supreme Court questioned the Biden administration’s ability to impose a vaccination or testing mandate on the nation’s biggest employers on Friday. The court was also debating a separate vaccination requirement for most health-care professionals.
The two cases are being heard at a time when coronavirus infections are on the rise due to the omicron variety, and the decision by seven justices to wear masks for the first time while hearing arguments highlighted the pandemic’s new phase.
However, the COVID circumstances did not seem to overcome the court’s six conservatives’ belief that the government overstepped its jurisdiction in requiring enterprises with at least 100 workers to be vaccinated or tested.
“This is something the federal government has never done before,” Chief Justice John Roberts said, throwing doubt on the administration’s claim that the Occupational Safety and Health Act, which has been in effect for more than 50 years, has such sweeping power.
Roberts and Justices Brett Kavanaugh and Amy Coney Barrett, who have been more sympathetic to state-level vaccination mandates than the other three conservative justices, are likely to determine the result in both cases. Barrett and Kavanaugh also grilled Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, with stern questioning.
The three liberal justices on the court expressed support for the employer regulation. Officials have shown “quite clearly that no alternative strategy will avert disease and death to anything like the degree that this one would,” according to Justice Elena Kagan. And Justice Stephen Breyer said he found it “unbelievable” that the regulation could be placed on hold in the “public interest.” He said that 750,000 new instances were reported across the nation on Thursday, and that hospitals were at capacity.
Unvaccinated workers at large firms are have to wear masks at work starting Monday, unless the court orders otherwise. Employer testing requirements and possible penalties do not begin until February.
Republican-led states and business groups have filed legal challenges to the rules, but the verdict before the Supreme Court will likely decide the fate of vaccination mandates that impact more than 80 million people.
Sean Marotta, a Washington lawyer whose clients include the American Hospital Association, said, “I believe basically what is at issue is whether these rules will go into force at all.” The trade association is not a party to the Supreme Court litigation.
COVID-19, according to administration lawyer Prelogar, “is the worst epidemic in American history and offers a unique occupational threat.” Over the course of six months, OSHA estimates that its emergency rule will save 6,500 lives and save 250,000 hospitalizations.
Nearly 207 million Americans, or 62.3 percent of the population, are completely vaccinated, with more than a third of them, including the nine justices, receiving a booster dose.
The vaccination mandates, according to Andy Slavitt, a former consultant to the Biden administration on COVID-19, are particularly successful for the 15% to 20% of Americans “who don’t want to get a shot, but will and don’t have any vehement opposition.”
For the first time, the Supreme Court is stepping in on administration vaccination policy, while the justices have turned down requests to invalidate state-level regulations.
However, a conservative majority worried about government overreach ended the federal eviction ban imposed in the wake of the outbreak.
On behalf of more than two dozen business organizations, lawyer Scott Keller testified on Friday that both vaccination mandates would create labor shortages and be expensive to employers. “Workers will resign right now” if the court does not issue an emergency injunction, Keller warned.
The second rule in question is a vaccination requirement that would apply to almost all health-care workers in the country. It affects 76,000 health care institutions as well as home health care providers who accept federal Medicare or Medicaid funds. There are medical and religious exceptions to the norm.
In roughly half of the states, federal appeals courts in New Orleans and St. Louis have halted the requirement. The government has said that it would take efforts to enforce it across the rest of the country.
Both issues were brought before the court on an emergency basis, and the court took the uncommon step of scheduling arguments instead of just judging on the parties’ filings. Unlike in previous issues before the court, the justices’ judgment might come in weeks, if not days.
Due of the epidemic, the proceedings were tried in a courtroom that was closed to the public. Inside were only the justices, attorneys engaged in the cases, court employees, and media. The public might, however, listen live, a move taken earlier in the epidemic when the justices heard arguments over the phone for almost 19 months.
If argument attorneys have positive coronavirus tests, the court has asked them to participate remotely if they have negative testing. After testing positive for COVID-19 after Christmas, Ohio Solicitor General Benjamin Flowers had moderate symptoms and largely recovered, but a test ordered by the court on Sunday found the virus, according to a spokesperson. He’d been immunized and had a booster injection.
State Attorney General Jeff Landry stated that Louisiana Solicitor General Elizabeth Murrill, who was arguing against the health care workers regulation, was also arguing remotely “depending on the court’s practice.” Landry attended Friday’s arguments in court.
It’s the first time attorneys have argued remotely since the court resumed in-person hearings in October.