Supreme Court skeptical of Biden’s vaccine mandates

WASHINGTON — The Supreme Court’s majority appeared skeptical Friday of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The court seemed more open to a separate vaccine mandate for most health care workers.

One, Sonia Sotomayor didn’t even appear in the courtroom, choosing to remain in her office at the court and take part remotely. Two lawyers, representing Ohio and Louisiana, argued by telephone after recent positive COVID-19 tests, state officials said.

The court’s conservatives appeared to believe that the administration overstepped its authority in its vaccine-or-testing requirement for businesses with at least 100 employees.

“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a half-century-established law, the Occupational Safety and Health Act, confers such broad authority.

Roberts and Justices Brett Kavanaugh and Amy Coney Barrett probably hold the key to the outcome in both cases, as they have been more receptive to state-level vaccine requirements than the other three conservative justices. Barrett and Kavanaugh also had tough questions for Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer.

The court’s liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.” And Justice Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to put that rule on hold.

Legal challenges to the policies from states and business groups are in their early stages, but the outcome at the high court probably will determine the fate of vaccine requirements affecting more than 80 million people.

Roberts, Kavanaugh and Barrett seemed to have fewer doubts about the health care vaccine mandate. Kavanaugh said it was a “very unusual situation” that hospitals and health care organizations affected by the regulation were “not here complaining” about the rule but instead support it. “What are we to make of that?” he asked.

The second regulation is a mandate that would apply to virtually all health care staff in the country. It covers

health care providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious

exemptions.

Decisions by federal appeals courts in New Orleans and St. Louis have blocked the mandate in about half the states. The administration has said it is taking steps to enforce it in the rest.

“I think effectively what is at stake is whether these mandates are going to go into effect at all,” said Sean Marotta, a Washington lawyer whose clients in

clude the American Hospital Association. The trade group is not involved in the Supreme Court cases.

Both vaccine rules would exacerbate labor shortages and be costly to businesses, lawyer Scott Keller argued Friday on behalf of more than two dozen business groups. Without an immediate order from the court, “workers will quit right away,” Keller said.