Lauren Moye, FISM News
The U.S. Supreme Court’s conservative members appear sympathetic to the arguments laid out yesterday against the Biden administration’s federal vaccine mandates in the workplace. However, they signaled some willingness to consider the mandate for healthcare providers as necessary considering the greater risk to patients. A final decision has not yet been reached.
The Justices began listening to arguments at 10 am (EST) yesterday for two different COVID-19 vaccination mandates: one that requires full vaccination or weekly testing for businesses with more than 100 employees and one that impacts 10.3 million healthcare workers at 76,000 healthcare facilities that receive Medicare or Medicaid funding. The oral arguments lasted for over three hours.
At the heart of the arguments was the question of, “Who gets to decide that the mandates are necessary?” For this reason, the arguments appeared to garner the support of the conservative justices who currently wield the majority.
However, the liberal justices were quick to point out rising Covid-19 infection rates and hospitalizations as a possible justification for the federal government’s usage of emergency powers in this situation.
Justice Elena Kagan said at one point, “More and more people are dying every day. More and more people are getting sick every day… And this is the policy that is most geared to stopping all this.”
The State of Ohio and the National Federation of Independent Businesses (NFIB) led the arguments against the OSHA vaccination rule. They have asked the Supreme Court to issue a stay against the mandate before Monday.
At one point early in the arguments, NFIB attorney representative Scott Keller tangled with Kagan on what would be necessary for the Occupational Health and Safety Administration to implement a broad vaccination rule across all industries. Keller argued that the necessary emergency must be limited in scope and include an examination of other possible responses before OSHA gained the necessary authority to respond with overwhelming power against industries by mandating a vaccine.
When pressed for why it was important for them to act this way, Keller, who had previously noted that even a government agency like the United States Postal Service had stated the mandate would negatively impact their workforce, responded, “The short version is, as soon as businesses have to put out their plans and this takes effect, workers will quit. That itself will be a permanent worker displacement that will ripple through the national economy.”
Chief Justice John Roberts signaled early sympathy to the vaccine mandates in this exchange by asking Keller, “And why wouldn’t OSHA have the authority to do the best approach possible to address what I guess you agree is a special workplace problem?”
However, later in the oral arguments, Roberts did point out the use of different agencies to create these mandates as a “workaround.” He said, “It seems to me that it’s that the government is trying to work across the waterfront, and it’s just going agency by agency.”
He added, “I’m wondering what it is you’re trying to work around.”
A few minutes later he further pressed the point by asking, “I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why doesn’t this be the primary responsibility of the states?”
However, the justices also seemed more poised to side with the Biden Administration by lifting a block that currently prevents healthcare workers from vaccinating in accordance with a rule passed by Medicaid and Medicare Services.
During Keller’s argument time, Justice Amy Coney Barrett was sure to draw this distinction by asking, “You’re not contesting that if we were talking about healthcare workers or a meat-packing plant, you’re not contesting that OSHA could rely on its emergency power to impose this kind of requirement in that context?”
Keller agreed with this statement, noting only that he would want to hear the reasoning for the decision.
During the latter half of the oral arguments that focused directly on the Medicaid and Medicare Services rule, liberal Justice Sonia Sotomayer also pointed out that the argument in favor of this rule differs from the previous one as a “spending clause case” instead of a “general clause case.” She said, “I always thought when you’re talking about the spending clause that the government has more power to define where it wants to spend its money, correct?”
Justice Samuel Alito pressed back against this argument, wanting to know if the states “have clear notice” that a vaccination mandate was possible through accepting Medicare and Medicaid funds.
However, Justice Brett Kavanaugh noted that states were leading the charge against this mandate rather than private healthcare providers, which shows the conservative justices are more divided on the nuances of these arguments.
The Justices are expected to reach a quick decision. A few of the conservative justices suggested at least invoking a temporary block while they deliberated further.