Conservative U.S. Supreme Court justices on Friday questioned the legality of President Joe Biden’s pandemic-related vaccine-or-testing mandate for large businesses but appeared more receptive to his administration’s vaccine requirement for health-care facilities at a time of surging COVID-19 cases.
The court’s nine justices, who are all vaccinated, heard more than 3 1/2 hours of arguments in two cases that test presidential powers to combat a raging public health crisis that already has killed roughly 835,000 Americans.
Decisions in both cases are expected quickly from the court, whose 6-3 conservative majority in the past has shown skepticism toward sweeping actions by federal agencies.
The White House has said the two temporary mandates will save lives and strengthen the U.S. economy by increasing the number of vaccinated Americans by the millions. Currently, just under 62 per cent of the country is considered fully vaccinated, lagging far behind most Western nations despite an early start to their campaign, including Canada by some 18 percentage points.
The challengers have argued that the federal government exceeded its authority by imposing requirements not specifically authorized by Congress and failed to follow the proper administrative processes for issuing emergency regulations.
Friday’s first argument focused on a U.S. Occupational Safety and Health Administration (OSHA) requirement that workers at businesses with 100 or more employees be vaccinated or tested weekly — a mandate that applies to more than 80 million workers nationwide. The administration is scheduled to begin enforcing the policy on Monday.
Chief Justice John Roberts wondered whether Congress or the states should have a say. Questioning U.S. Solicitor General Elizabeth Prelogar, who argued for the administration, Roberts appeared skeptical that the 1970 law that established OSHA gave that agency the power it needs.
“That was 50 years ago that you’re saying Congress acted. I don’t think it had COVID in mind. That was almost closer to the Spanish flu than it is to today’s problem,” Roberts said, referring to the pandemic that occurred a century ago.
Some justices raised the possibility of the court issuing a temporary stay blocking the rule while the court decides how to proceed. Some also wondered why the policy would be impermissible in the face of a historic pandemic.
“This is a pandemic in which nearly a million people have died,” said liberal Justice Elena Kagan. “It is by far the greatest public health danger that this country has faced in the last century. 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.”
“I would find it would be unbelievable to be in the public interest to stop these vaccinations,” liberal Justice Stephen Breyer said.
The arguments came as the U.S. reported 662,000 new COVID cases on Thursday, the fourth highest daily U.S. total ever recorded and just three days after a record of nearly 1 million cases was reported, according to a Reuters tally.
The seven-day average for new cases set a record for a 10th day in a row at 597,000 new infections, while COVID hospitalizations reached nearly 123,000 and are approaching the record of over 132,000 set last year, the data showed.
“I don’t believe we’ve seen the peak yet here in the United States,” Centers for Disease Control and Prevention (CDC) Director Rochelle Walensky told NBC on Friday.
WATCH | U.S. records 1 million new cases in a single day on Tuesday:
Roberts appeared skeptical as to whether the OSHA mandate was specific to the workplace, noting that the administration has sought to enacted various mandates. As such, Roberts wondered if it is an issue that the court should address as a broad exercise of executive power.
“Why doesn’t Congress have a say in this … and why isn’t this the primary responsibility of the states?” Roberts asked.
Conservative Justices Neil Gorsuch and Brett Kavanaugh both wondered if the OSHA rule could be held as invalid under a legal doctrine that says Congress must provide a clear statement on a specific issue in order for a federal agency to be able to issue broad regulations on it.
“It’s not that judges are supposed to decide some question of public health; it’s about regulating the rules of a system to ensure that the appropriate party does,” Gorsuch asked.
Conservative Justice Samuel Alito, while saying he is not anti-vaccinations, raised the question of potential risks to some people of getting the shots and asked whether OSHA has ever imposed a safety measure that imposes a “risk.”
The state of Ohio and the National Federation of Independent Business took the lead in seeking to block the mandate.
2nd case involves Medicare, Medicaid patients
Under the second policy being reviewed by the Supreme Court, vaccination is required for an estimated 10.3 million workers at about 76,000 health-care facilities, including hospitals and nursing homes, that participate in the Medicare and Medicaid government health insurance programs for elderly, disabled and low-income Americans.
The Centers for Medicare & Medicaid Services (CMS), the federal agency responsible for administering the two programs, issued the rule. The states of Missouri and Louisiana are taking the lead in the arguments before the justices seeking an order blocking it.
The administration has argued that Congress gave federal agencies broad leeway to require employers to protect workers and Medicare and Medicaid patients from health and safety hazards.
The conservative justices seemed more open to this policy than the one applying to large employers.
Kavanaugh noted that private health-care providers did not challenge the mandate that states are contesting. Conservative Justice Amy Coney Barrett suggested the government could require vaccinations in certain facilities but not others.
Gorsuch seemed skeptical of the policy as a whole, questioning whether CMS has the authority to issue a vaccine regulation because such action affects an employer’s staffing decisions, which Congress has said the agency could not do as part of its Medicaid and Medicare funding requirements.
Gorsuch said that “you cannot use the money as a weapon to control these things.”
All the government is doing, Kagan said, is “to say to providers, you know what, basically, the one thing you can’t do is to kill your patients, so you have to get vaccinated.”
The justices spent most of the pandemic working remotely but returned to in-person arguments in October. All nine are fully vaccinated, the court said. The court remains closed to the public.
The Supreme Court has dealt with several pandemic-related cases already and rejected religious-based challenges to state vaccine requirements.