Court appears ready to block workplace vaccine or testing policies, but may allow healthcare workers to get vaccinated

Analysis of arguments

On Friday, the court heard oral arguments in two cases over the COVID-19 vaccination mandate. (Guyyoung1966 via Wikimedia Commons)

The Supreme Court heard oral arguments Friday on two sets of challenges to the Biden administration’s powers to fight the COVID-19 pandemic. In more than two hours of debate, the justices cast doubt on the government’s attempts to mandate vaccines or testing for workers at large employers. In the second case, which lasted about an hour and a half, the justices were more receptive to the administration’s efforts to vaccinate health care workers in federally funded facilities.

Both cases were brought to the Supreme Court on an emergency basis last month, and in an unusual move, the justices opted to fast-track the case, questioning the legality of the mandate over whether it can survive. Oral argument. lower court.

Even beyond the subject of the argument itself, the specter of COVID-19 hung over the courtroom from the start. When the eight justices sat on the bench, all but one — Justice Neil Gorsuch — wore masks. That’s a far cry from previous in-person debates during the pandemic, when Justice Sonia Sotomayor was the only justice wearing a mask. Sotomayor, who has lifelong diabetes that puts her at a higher risk of COVID-19, didn’t sit on the bench at all; instead, she chose to participate in Friday’s debate remotely.

In addition, for the first time since the court resumed in-person arguments, two of the six lawyers participated by telephone.according to Reuters, Ohio Attorney General Benjamin Flowers contracted COVID-19 after Christmas, while Louisiana Attorney General Elizabeth Muriel argued remotely “under COVID protocols,” This requires defense attorneys who test positive for COVID to argue by phone.

OSHA case

In the first case, National Federation of Independent Business v. Department of Labor, centered on a vaccine or testing mandate issued by OSHA. It requires all employers with 100 or more employees (roughly two-thirds of the private sector) to make those employees either fully vaccinated against COVID-19 or get tested weekly and wear masks at work.

Scott Keller, a lawyer representing business groups, warned that allowing the mandate to survive would result in a “huge economic shift” that would cost businesses “billions of dollars in irrecoverable costs.” He told the judge that if Congress intends to give OSHA the power to fight COVID-19 by implementing rules like vaccine or testing authorization, it needs to do so explicitly. Keller emphasized that the question is not how the U.S. will respond to COVID-19, but who decides what to do.

For Justice Elena Kagan, the answer to that question is simple. She suggested that, given the complex balance of public health and economic trade-offs, decisions should be made by executive agencies with expertise in their areas of regulation and political accountability, rather than by unelected judges.

But Chief Justice John Roberts saw things differently. He suggested that Congress did not specifically give OSHA the power to authorize a vaccine or testing — in fact, OSHA has never authorized a vaccine before. It may be more appropriate for individual states or Congress to impose such authorizations. “It’s hard to argue” that a law passed by Congress 50 years ago giving the Occupational Safety and Health Administration (OSHA) general powers gives the agency “freedom” to publish, he told Solicitor General Elizabeth Prelog. A policy of this magnitude.

Judge Samuel Alito was also skeptical, describing OSHA’s interpretation as “squeezing an elephant into a mouse hole”. The vaccine or testing mission is “fundamentally different” from anything OSHA has done before, he said. In fact, he points out, most OSHA regulations apply only while workers are on the job, but vaccinations are permanent.

In both cases, Justice Stephen Breyer expressed strong support for allowing the Biden administration to carry out its mandate while the litigation continues. He has repeatedly cited statistics showing a record number of COVID-19 cases across the country, driven by the highly contagious variant of Omicron. Breyer noted that the U.S. now averages more than 500,000 cases a day — far higher than when OSHA first issued a vaccine or testing order. He added that hospitals were almost overwhelmed with unvaccinated patients. He noted that one of the factors the court considers in deciding whether to grant a challenger’s request to suspend authorization is whether it is in the public interest to do so. With the recent wave of COVID-19 cases, Breyer told Keller, “I would find it unbelievable.”

Health Vaccine Case

In the second case, Biden v Missouri, judges are considering whether a Biden administration could enforce nationwide a rule that would require all health care workers in Medicare and Medicaid facilities to be fully vaccinated against COVID-19 unless they are eligible Obtain medical or religious immunity. The Department of Health and Human Services released the rules for more than 10 million workers in November.

Deputy Attorney General Brian Fletcher, who is representing the Biden administration, told the judge that requiring health care workers to vaccinate is “entirely within” HHS’s statutory authority.

Sotomayor added that the vaccine mandate for healthcare workers is also a power the government effectively exercises under the Constitution’s spending clause, which allows the federal government to impose conditions on the money it releases.

Alito was skeptical, asking if the Fletcher states were clearly aware that by funding Medicare and Medicaid they would be bound by vaccine requirements later on, but Roberts seemed more convinced. “You signed the contract,” he told Missouri Deputy Attorney General Jesus Ossett, who represented a group of challengers, and he later reminded Muriel that states had agreed to a broad rule that would allow the Department of Health and Human Services to impose charges on patients. health and safety.

Orsett stressed that if a Biden administration were allowed to carry out the mission nationwide, “rural America would face an imminent crisis” as healthcare workers would have to choose between losing their jobs and complying with the mission.

Kagan countered that argument, telling Orsett that HHS had considered the possibility before issuing the authorization. She conceded that while some may quit, other employees may return to the workplace because they will feel safer with tasks in place and there may be fewer people who get sick. In addition, she added, some people are not going to the hospital because they are afraid of contracting the coronavirus there. She stressed that HHS must balance all these concerns. “I don’t know much about rural hospitals,” Kagan admitted. “But the secretary of the Department of Health and Human Services,” she observed, “that’s his job.”

this article is Originally Posted on Howe on the Court.

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