Justices halt vaccine rule for businesses
In separate decision, divided Supreme Court allows mandate for most health care workers
WASHINGTON — The Supreme Court has stopped a major push by the Biden administration to boost the nation’s COVID-19 vaccination rate, a requirement that employees at large businesses get a vaccine or test regularly and wear a mask on the job.
At the same time, the court is allowing the administration to proceed with a vaccine mandate for most health care workers in the U.S. The court’s orders Thursday came during a spike in coronavirus cases caused by the omicron variant.
The court’s conservative majority concluded the administration overstepped its authority by seeking to impose the Occupational Safety and Health Administration’s vaccine-or-test rule on U.S. businesses with at least 100 employees. More than 80 million people would have been affected, and OSHA had estimated that the rule would save 6,500 lives and prevent 250,000 hospitalizations over six months.
“OSHA has never before imposed such a mandate. Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here,” the conservatives wrote in an unsigned opinion.
In dissent, the court’s three liberals argued that it was the court that was overreaching by substituting its judgment for that of health experts. “Acting outside of its competence and without legal basis, the Court displaces the judgments of the Government officials given the responsibility to respond to workplace health emergencies,” Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote in a joint dissent.
President Joe Biden said he was “disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law.”
Biden called on businesses to institute their own vaccination requirements, noting that a third of Fortune 100 companies already have done so.
500 million more tests
Biden on Thursday looked to other ways to step up his administration’s response to a coronavirus surge driven by the omicron variant, sending what he said is urgently needed help to overwhelmed hospitals and pledging to provide Americans with free tests and masks as the country enters the pandemic’s third year.
Biden said he was directing his staff to purchase an additional 500 million tests for distribution to Americans, doubling the government’s previous purchase as his administration scrambles to respond to the highly contagious omicron variant.
In addition, the president said he is sending a total of 120 military medical personnel to six states where hospitals have been overrun by cases. And he promised to reveal next week plans to help Americans by providing free, highquality masks that are better at preventing infection from the virus.
It is unclear when the additional tests will become available. Biden announced the first batch of 500 million tests just before Christmas, and those will not start being delivered until later this month, according to White House officials.
The president did not say when the new batch of 500 million tests will be manufactured and ready for distribution. But he said the athome tests — along with more than 20,000 testing sites around the country — will help to meet the surging demand as people try to continue work, school and social lives despite the rapid spread of the virus.
“We’re on track to roll out a website next week where you can order free tests shipped to your home,” he said, adding that people with medical insurance can also soon get reimbursed for the purchase of up to eight tests a month.
The announcement about help for hospitals was the beginning of a deployment of 1,000 service members to help doctors and nurses deal with a surge in omicron cases, Biden said.
The deployments are part of the Biden administration’s efforts to tackle the latest surge of omicron cases, which have reached more than 780,000 a day across the country. The number of Americans hospitalized with COVID-19 has hit a record high of about 142,000.
Research has emerged that omicron causes less severe disease and vaccines remain protective against the worst outcomes for the vast majority of people. Still, experts say that the sheer number of cases are likely to burden health care systems already strained by previous surges and grappling with staffing shortages.
Challenged by GOP-led states
When crafting the OSHA vaccination rule, White House officials always anticipated legal challenges — and privately some harbored doubts that it could withstand them. The administration nonetheless still views the rule as a success at already driving millions of people to get vaccinated and encouraging private businesses to implement their own requirements that are unaffected by the legal challenge.
The OSHA regulation had initially been blocked by a federal appeals court in New Orleans, then allowed to take effect by a federal appellate panel in Cincinnati.
Both rules had been challenged by Republican-led states. In addition, business groups attacked the OSHA emergency regulation as too expensive and likely to cause workers to leave their jobs at a time when finding new employees already is difficult.
The National Retail Federation, the nation’s largest retail trade group, called the Supreme Court’s decision “a significant victory for employers.”
The vaccine mandate that the court will allow to be enforced nationwide scraped by on a 5-4 vote, with Chief Justice John Roberts and Justice Brett Kavanaugh joining the liberals to form a majority. The mandate covers virtually all health care workers in the country, applying to providers that receive federal Medicare or Medicaid funding. It affects 10.4 million workers at 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.
Biden said that decision by the court “will save lives.”
Conservatives’ dissent
In an unsigned opinion, the court wrote: “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it. At the same time, such unprecedented circumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have.” It said the “latter principle governs” in the health care arena.
Justice Clarence Thomas wrote in dissent that the case was about whether the administration has the authority “to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo.” He said the administration hadn’t shown convincingly that Congress gave it that authority.
Justices Samuel Alito, Neil Gorsuch and Amy Coney Barrett signed onto Thomas’ opinion. Alito wrote a separate dissent that the other three conservatives also joined.
Decisions by federal appeals courts in New Orleans and St. Louis had blocked the mandate in about half the states. The administration already was taking steps to enforce it elsewhere.
More than 208 million Americans, 62.7 percent of the population, are fully vaccinated, and more than a third of those have received booster shots, according to the federal Centers for Disease Control and Prevention. All nine justices have gotten booster shots.
The courthouse remains closed to the public, and lawyers and reporters are asked for negative test results before being allowed inside the courtroom for arguments, though vaccinations are not required.
The justices heard arguments on the challenges last week. Their questions then hinted at the split verdict that they issued Thursday.
A separate vaccine mandate for federal contractors, on hold after lower courts blocked it, has not been considered by the Supreme Court.