The Conservative Supreme Court Justices Aren't Hot On Biden's Vaccine-Or-Test Rule

The court heard oral arguments on a pair of workplace vaccine regulations. The justices could block one or both from being enforced.

The Supreme Court heard oral arguments Friday to determine the fate of the White House’s federal vaccine rules for workers, pressing the Biden administration and GOP state officials on the question of whether federal agencies can require COVID-19 vaccination or testing in the workplace.

The justices are expected to decide relatively quickly whether to block the Biden administration from imposing the vaccine rules while litigation plays out in lower courts. Rulings against the White House would be a significant setback for the president’s vaccination campaign at a time when COVID-19 caseloads have ballooned due to the omicron variant.

If the justices allow either or both rules to stand, it could nudge more workers into getting vaccinated in order to keep their jobs.

The court holds a 6-3 conservative majority, and has already upheld the ability of states to implement vaccine requirements for workers during the pandemic. But the line of questioning Friday suggested the conservative justices were skeptical of the federal government’s power to impose broad vaccine regulations.

One rule, issued through the Occupational Safety and Health Administration, would require employers with at least 100 workers to implement programs in which those workers either show proof of vaccination or undergo weekly testing for the coronavirus. The White House estimates that it would cover 84 million employees at work sites around the country.

The other rule, issued through the Centers for Medicare and Medicaid Services, would require workers at health care facilities that receive Medicare or Medicaid funding to be vaccinated. That regulation would impact some 17 million employees at 76,000 workplaces, including hospitals, long-term facilities and dialysis centers, the administration has said.

The two regulations prompted a thicket of lawsuits filed by Republican state officials and business groups who argued the White House overstepped its legal authority. Citing the broad economic effects of such rules, the plaintiffs argued that neither OSHA nor CMS could issue them without an act of Congress.

“This is the policy that’s most geared toward stopping all of this. There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.”

- Justice Elena Kagan

Scott Keller, who argued against the OSHA rule on behalf of a business lobby, the National Federation of Independent Business, said the regulation would lead to “permanent worker displacement” as workers left jobs due to the vaccine-or-test requirement.

“A single federal agency tasked with occupational standards cannot commandeer businesses economywide into becoming de facto public health agencies,” Keller said.

Justice Elena Kagan was skeptical that OSHA overstepped its bounds. She asked Keller how the COVID-19 pandemic wouldn’t qualify as an emergency worthy of OSHA’s intervention, calling it “by far the greatest public health danger this country has faced in the last century.”

“This is the policy that’s most geared toward stopping all of this,” she said. “There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. Why isn’t this necessary and grave?”

She acknowledged the rule was “an extraordinary use of emergency power,” but called the pandemic “an extraordinary circumstance.”

Attorneys for President Joe Biden's administration faced skepticism from the Supreme Court's conservative justices, who heard arguments Friday on whether to halt federal vaccine rules.
Attorneys for President Joe Biden's administration faced skepticism from the Supreme Court's conservative justices, who heard arguments Friday on whether to halt federal vaccine rules.
Drew Angerer via Getty Images

Justice Stephen Breyer cited the explosion in COVID-19 case numbers as the omicron variant spreads and asked how it could “conceivably be in the public interest” to block the OSHA rule.

“Are you really asking us to issue a stay?” Breyer asked.

The questioning from Justice Amy Coney Barrett, however, suggested she thought perhaps the OSHA rule was too sweeping in the way it touched all industries, as opposed to being targeted. She noted that “there are some workplaces in which the danger to employees is different,” citing the example of meatpacking plants, which have hosted some of the country’s worst outbreaks.

Solicitor General Elizabeth Prelogar, who argued in favor of the OSHA rule for the federal government, said the vaccine-or-test mandate was in “the heartland of OSHA’s regulatory authority.”

Chief Justice John Roberts noted that the Biden administration has issued a handful of vaccine rules through different agencies, including one for federal contractors, and asked “why Congress doesn’t have a say in this.”

“It seems to me that the government is trying to work across the waterfront and it’s just going agency by agency,” he said.

Justice Samuel Alito seemed to agree with opponents of the OSHA rule by saying it was “fundamentally different” from other occupational health rules. He wondered if OSHA was trying to “squeeze an elephant through a mouse hole” by implementing the rule.

“This affects employees all the time,” Alito said. “If you’re vaccinated when you’re on the job, you’re vaccinated when you’re not on the job.”

Brian Fletcher, the principal deputy solicitor general who argued in favor of the CMS rule, said its purpose was to protect patients by assuring caregivers are vaccinated. He argued that CMS has clear authority to require vaccinations at facilities that accept Medicare and Medicaid dollars.

“It seems to me that the government is trying to work across the waterfront and it’s just going agency by agency.”

- Chief Justice John Roberts

Roberts seemed to suggest in his questioning that he felt the administration’s case might be stronger for the CMS rule, since the agency’s primary mission is health care.

Kagan noted that the CMS rule amounted to a “spending clause case,” since the agency’s power to implement a vaccine rule rests on the fact that the health care facilities take government funding. “The government has more power to decide where it wants to spend its money,” she said.

But Justice Neil Gorsuch suggested the government would be using its funding power in a punitive way to control employment practices. When giving CMS its funding powers, he said, Congress would have assumed “you cannot use the money as a weapon to control these things.”

The lower courts have been split on the question of whether the White House was on sound legal footing in trying to implement the rules. The OSHA regulation was temporarily blocked in November by a panel of three appellate judges, two of whom were appointees of former President Donald Trump. But after several lawsuits were consolidated, another panel of judges lifted that stay after finding OSHA had the authority to enact its emergency rule.

The CMS rule was blocked in roughly half of states but allowed to proceed in the other half, where it is already in effect. OSHA is slated to begin enforcement of certain parts of its rule on Jan. 10. The justices may choose to act as quickly as possible to give employers some clarity.

Alito floated the idea of the court entering a brief administrative stay against the OSHA rule to buy more time to evaluate the case.

However the justices rule on the cases, the Supreme Court as an institution seems to believe COVID-19 safety rules are critical for the workplace. In order to enter the court, lawyers had to test negative for COVID-19 regardless of whether they’re vaccinated. In that sense, the Supreme Court’s own rule is more stringent than OSHA’s, which would not require regular testing for vaccinated workers.

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