US supreme court conservatives appear skeptical of workplace vaccine rule
The supreme court’s conservative majority appeared skeptical on Friday of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The court was also hearing arguments on a separate vaccine mandate for most healthcare workers.
The arguments in the two cases come at a time of surging coronavirus cases because of the Omicron variant, and the decision on Friday by seven justices to wear masks for the first time while hearing arguments reflected the new phase of the pandemic.
Justice Sonia Sotomayor, a diabetic since childhood, 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.
But the Covid circumstances did not appear to outweigh the views of the court’s six conservatives 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,” the 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 the two newest justices, Brett Kavanaugh and Amy Coney
Barrett, who were selected by Donald Trump, 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 the solicitor general, Elizabeth Prelogar, the administration’s top supreme court lawyer.
The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan, who was previously solicitor general, 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. He said that on Thursday there were some 750,000 new cases in the country and that hospitals were full.
Beginning Monday, unvaccinated employees in big companies are supposed to wear masks at work, unless the court blocks enforcement. Testing requirements and potential fines for employers do not kick in until February.
Legal challenges to the policies from Republican-led states and business groups are in their early stages, but the outcome at the supreme court probably will determine the fate of vaccine requirements affecting more than 80 million people.
Prelogar 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.
Nearly 207 million Americans, 62.3% of the population, are fully vaccinated, and more than a third of those have received a booster shot, including the nine justices.
Andy Slavitt, a former adviser to the Biden administration on Covid-19, 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.
Both vaccine rules would exacerbate labor shortages and be costly to businesses, lawyer Scott Keller argued on Friday on behalf of more than two dozen business groups.
The second regulation at issue is a vaccine mandate that would apply to virtually all healthcare staff in the country. It covers healthcare providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home healthcare 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 is taking steps to enforce it in the rest.
Both cases came to the court on an emergency basis and a decision from the justices could come in weeks if not days.