Conservative Supreme Court Justices Grill Biden Lawyer On Osha Vaccine Requirement

FILE - In this March 21, 2021, file photo people view the Supreme Court building from behind security fencing on Capitol Hill in Washington after portions of an outer perimeter of fencing were removed overnight to allow public access. A Supreme Court case being argued this week amid March Madness could erode the difference between elite college athletes and professional sports stars. (AP Photo/Patrick Semansky, File)

In a high-stakes public session, the U.S. Supreme Court heard Friday arguments to determine whether the U.S. government may begin enforcing COVID-19 vaccination requirements that affect nearly 100 million workers.
The justices heard oral arguments for three hours and forty minutes on federal vaccine testing rules for businesses with more than 100 employees and vaccine mandates for workers in facilities that receive Medicaid or Medicare funding. The high court has put off enforcement of the November-announced policies.

During early arguments, Chief Justice John Roberts, Justice Neil Gorsuch, and Justice Brett Kavanaugh suggested that government officials had stepped outside the bounds of their authority. Roberts stated that it was “hard to argue that” Congress had given officials the power to act. Justice Brett Kavanaugh noted, too, that Congress has yet to pass any vaccine statute.

Chief Justice John Roberts stated, “This is something that the federal government has never done previously.” Justice Amy Coney Barrett suggested that the rule’s broad scope was a problem. Justice Clarence Thomas suggested, however, that the federal government might have greater powers during a pandemic. However, liberal justices on Friday made it clear that they would support the federal mandates – but only as they applied to larger companies.

Justice Elena Kagan stated that officials from the Biden administration have demonstrated “quite clearly” that there is no other policy that will prevent sickness and death anywhere near the extent that this one will.

Justice Stephen Breyer said that he also found it “unbelievable,” that it could be in the public interest to suspend mandate for employees, given the rise in cases of highly-transmissible Omicron variant COVID-19 and the increasing capacity of hospitals.

The high court can issue a short administrative order deciding whether or not to suspend enforcement of the mandate. This could be issued as soon as Friday or as long as the weekend. It is likely that a more detailed written decision explaining the court’s decision will be issued later.

The Department of Labor’s OSHA (Occupational Safety and Health Administration) mask mandate was to take effect on Monday, January 7, while the testing mandate will be in place next month on February 9. OSHA stated that it will not impose penalties on businesses that don’t comply by February end. “Does federal government object to us taking a few days to think about this and to digest the arguments before people lose their jobs?” Justice Samuel Alito asked.

Solicitor General Elizabeth Prelogar representing the government claimed that OSHA had “found there is grave damage every day and the numbers were stark.” However, the court later stated that it could take additional time if it felt it needed it.

She stated, “We believe that lives are being lost every single day.” She also reiterated that keeping the mandate for vaccines for health workers on hold “will likely lead to hundreds of thousands of deaths from COVID-19 and serious illnesses that could be prevented.”

Justice Thomas asked Prelogar if there were other tools or methods OSHA could use instead of the vaccine mandate. Prelogar replied that the mandate is the “single most effective way to target” the OSHA goal, which includes serious illness transmission, and more. She stated that vaccination provides protection on all fronts.

Justice Alito continued to question Prelogar about the side effects of vaccines and stressed their safety. Prelogar acknowledged that there may be some negative consequences, but they are minor compared to COVID-19.

Prelogar answered no to the question of whether OSHA ever issued any other regulations that could have adverse effects on workers’ health.

Nearly 207 million Americans are fully vaccinated. This is 62.3% of the country’s population. More than a third have had a booster shot including the nine justices.

While the court heard arguments against vaccine regulations for healthcare workers, the liberal justices continued their defense of the federal government’s discretion to impose COVID-related orders.

Justice Kagan spoke out in a heated exchange. You must get vaccinated to prevent you from transmitting the deadly disease to elderly Medicare patients or sick Medicaid patients. Kagan said, “It seems like a fairly basic infection-prevention step.” “You cannot be the carrier of the disease.”

Biden’s orders, also known as “emergency temporary standards”, have been challenged by several Republican-led states, business alliances, religious groups, and others. They are seen as a federal “power grab,” which intrudes upon their autonomy. They claim such broad rules can’t be imposed without specific congressional action.

However, the administration and its supporters claim that the pandemic has caused a nationwide crisis that has already killed more than 800,000. Federal agencies are empowered to create rules that protect the safety and health of all workers.

This issue is not only about the current administration’s response to the pandemic, but could also serve as a legal model for the regulatory limits of governments in future disputes over executive power. It also raises the question of which powers federal and state governments have in an emergency situation.

The federal appeals court ruled last month that the federal government could enforce its shot-or-test rules for businesses with more than 100 employees. This means they must be fully vaccinated and have their shots every week. They also need to wear masks all day. This could have a significant impact on 84 million American workers and was scheduled to take effect this week.

A separate mandate has been blocked by federal courts in 24 other states. It applies to all health care workers in facilities that participate with the Medicare or Medicaid programs. This policy will affect approximately 17 million workers and is expected to be fully implemented this week.

In its brief to the court, the Justice Department stated that most of these workers were vaccinated voluntarily, but that the policy should be applied to all employees in approximately 76,000 health care facilities as well as home-care providers.

“This requirement will save hundreds, or even thousands of life each month,” stated the administration. They asked the high court to allow the Secretary for Health and Human Services’ urgent safety and health measure to go into effect before the winter spikes in COVID-19 cases gets worse.

In a statement, the White House stated that it was confident in both the legal authority and the DOJ’s ability to defend them at the Supreme Court.