Justices skeptical of Biden vax rule
WASHINGTON — The Supreme Court’s conservative 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 also heard arguments on a separate vaccine mandate for most health care workers.
The arguments in the two cases come at a time of spiking coronavirus cases because of the omicron variant. But the COVID circumstances did not appear to outweigh the views of the court’s six conservatives that the administration overstepped its authority with its rule 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.
The court’s three 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.
“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 include the American Hospital Association. The trade group is not involved in the Supreme Court cases.
Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, told the justices that COVID-19 “is the deadliest pandemic in American history and it poses a unique workplace danger.” OSHA has estimated that its emergency regulation will save 6,500 lives and prevent 250,000 hospitalizations over six months.
Andy Slavitt, a former adviser to the Biden administration on COVID19, said the vaccine requirements are extremely effective for 15% to 20% of Americans, “who don’t like to get a shot, but they will and don’t have any strenuous objection.”
The high court is weighing in on administration vaccine policies for the first time, although the justices have turned away pleas to block state-level mandates. But a conservative majority concerned about federal overreach did bring an end to the federal moratorium on evictions put in place because of the pandemic.
The second regulation at issue is a vaccine 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.