Posted on 01/07/2022 4:55:23 PM PST by TexasGurl24
The Supreme Court heard oral argument on Friday in two sets of challenges to the Biden administration’s authority to combat the COVID-19 pandemic. For over two hours of debate, the justices were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers. In the second case, which lasted for roughly an hour and a half, the justices were more receptive to the administration’s efforts to impose a vaccine mandate for health care workers at facilities that receive federal funding.
Both cases came to the Supreme Court last month on an emergency basis and, in an unusual move, the justices opted to fast-track the cases for oral argument on the question whether the mandates can remain in place while challenges to their legality continue in the lower courts.
Even beyond the subject matter of the arguments themselves, the specter of COVID-19 loomed over the courtroom from the outset. When eight justices took the bench, all but one of them – Justice Neil Gorsuch – wore masks. That was a sharp departure from prior in-person arguments during the pandemic, when Justice Sonia Sotomayor has been the only justice wearing a mask. Sotomayor, who has lifelong diabetes that puts her at higher risk from COVID-19, did not take the bench at all; she instead opted to participate in Friday’s arguments remotely.
In addition, for the first time since the court’s return to in-person arguments, two of the six lawyers participated by phone. According to Reuters, Ohio Solicitor General Benjamin Flowers contracted COVID-19 after Christmas, while Louisiana Solicitor General Elizabeth Murrill argued remotely “in accordance with COVID protocols,” which require arguing attorneys who test positive for COVID to argue by telephone.
The OSHA case The first case, National Federation of Independent Business v. Department of Labor, centers on the vaccine-or-test mandate issued by the Occupational Safety and Health Administration. It requires all employers with 100 or more employees – roughly two-thirds of the private sector – to compel those employees to either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work.
Representing the business groups, lawyer Scott Keller warned that allowing the mandate to remain in place would cause “a massive economic shift,” resulting in “billions upon billions of non-recoverable costs” for businesses. If Congress intended to give OSHA the power to combat COVID-19 by imposing rules like the vaccine-or-test mandate, he told the justices, it needed to do so clearly. The question, Keller emphasized, is not what the United States is going to do about COVID-19, but instead who is going to decide what to do.
For Justice Elena Kagan, the answer to that question was simple. With the complicated balancing of public health and economic trade-offs, she suggested, administrative agencies, who have expertise in the areas that they regulate and are politically accountable, should make the decision, rather than unelected judges.
But Chief Justice John Roberts saw things differently. He suggested that Congress had not specifically given OSHA the power to enact a vaccine-or-test mandate – and, indeed, OSHA had never mandated vaccines before. It might be more appropriate for individual states to impose such a mandate, or Congress. It’s “hard to argue,” he told U.S. Solicitor General Elizabeth Prelogar, that a law passed by Congress 50 years ago giving OSHA general powers gives the agency “free rein” to issue a policy of this magnitude.
Justice Samuel Alito was also dubious, describing OSHA’s interpretation as “squeezing an elephant into a mousehole.” The vaccine-or-test mandate, he said, is “fundamentally different” from anything that OSHA has done before. Indeed, he noted, most OSHA regulations apply only while workers are on the job, but a vaccination is permanent.
In both cases, Justice Stephen Breyer voiced strong support for allowing the Biden administration to enforce the mandates while litigation continues. He repeatedly invoked statistics showing that the number of nationwide COVID-19 cases, driven by the highly contagious Omicron variant, is at an all-time high. The U.S. is now averaging more than 500,000 cases per day – far higher than when OSHA first issued the vaccine-or-test mandate, Breyer noted. And hospitals are nearly full with patients who are not vaccinated, he added. One of the factors that the court considers in deciding whether to grant the challengers’ request to put the mandate on hold is whether it is in the public interest to do so, he observed. With the tidal wave of recent COVID-19 cases, Breyer told Keller, “I would find that unbelievable.”
The health care vaccine case In the second case, Biden v. Missouri, the justices are considering whether the Biden administration can enforce nationwide a rule that requires all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption. The Department of Health and Human Services issued the rule, which applies to more than 10 million workers, in November.
Representing the Biden administration, Deputy Solicitor General Brian Fletcher told the justices that requiring health care workers to be vaccinated “falls squarely within” HHS’ statutory authority.
Sotomayor chimed in that the vaccine mandate for health care workers was also a valid exercise of the government’s power under the Constitution’s spending clause, which allows the federal government to impose conditions on the funds that it gives out.
Alito was skeptical, asking Fletcher whether the states had clear notice that by taking funds for Medicare and Medicaid they would later be subject to the vaccine requirement, but Roberts appeared to be more convinced. “You signed the contract,” he told Jesus Osete, the Missouri deputy solicitor general representing one set of challengers, and he later reminded Elizabeth Murrill, the solicitor general of Louisiana, that states had agreed to a broad provision that allowed the Department of Health and Human Services to impose requirements for the health and safety of patients.
Osete emphasized that if the Biden administration were allowed to enforce the mandate nationwide, “rural America will face an imminent crisis,” as health care workers would have to choose between losing their jobs and complying with the mandate.
Kagan pushed back against that argument, telling Osete that HHS had taken that possibility into account before issuing the mandate. Although some people might quit, she conceded, other employees might return to the workplace because they would feel safer with the mandate in place, and fewer people might be out sick. Moreover, she added, some people are not going to hospitals because they are afraid of getting COVID there. HHS, she stressed, has to balance all of these concerns. “I don’t know very much about rural hospitals,” Kagan acknowledged. “But the secretary” of Health and Human Services, she observed, “that’s his job.”
Split the baby, apply the tyranny slowly so as not to spook the sheep.
So the SCOTUS statists will want to punish those workers for not obeying the party.
I think that a vaccinate *or* regular testing requirement might be a reasonable one for health care workers...and maybe others as well. But a vaccinate or be fired requirement is *never* justified.
Good for Alito for pointing this out. It’s even more ludicrous when you consider that OSHA mandate is behind issued under an Emergency Temporary Standard. There’s nothing “temporary” about a vaccine.
Mandating a vaccine as a workplace safety measure is the equivalent of requiring construction workers to get hard hats surgically attached to their heads.
I’ve found Amy Howe’s takes mostly on the mark, so this may cause some folks some heartburn.
I’ve been listening to the audio. What the hell was going on with AJ Kagan? I don’t believe I have ever heard her so agitated.. It was noticeable.
I noticed the exact same thing. I commented on that in the live thread. I have never heard her act like that before. It was very, very unprofessional.
She came off like a Karen. I think she has completely bought into the COVID stuff.
All three of the liberal justices were acting the same way. It was all emotion, no logic or legal reasoning, and they were shrill and angry. Sotomayor is always like that, but Breyer and Kagan don’t normally act that way.
I thought it might be because they know that the OSHA mandate is going to get struck down and they are angry about it but that’s a wild guess.
Sotomayor and Breyer need to at least educate themselves enough that they aren’t spouting nonsensical statistics before they vote on anything.
Activist judges trying to write legislation.
What does the Constitution say?
Does the federal government really have power to say anything on this? Where?
And does the Constitution single out healthcare workers for a labor area where the federal government gets special control?
Is it OK to control this profession, but not that profession? How do we know where these lines are drawn?
The whole thing is totally inappropriate.
One might (possibly) think it’s all a really swell idea. But that doesn’t make it permissible.
It’s interesting because it was split on the law wording - Medical people because the medicare contracts state that they have to abide by government rulings to get the money. OSHA may get blocked because it’s outside their legal powers for workplace regulations.
I’m stuck under the executive order mandate for government subcontractors though and I don’t think either of these rulings will apply to me.
No one seems to care that the treatment being mandated doesn’t stop the disease from spreading. It seems that the Chief Justice would approve a mandate for all healthcare workers to eat peanut butter and jelly sandwiches if that is what HHS demanded.
So much for “Heroes”
I will also chalk up AJ Breyer’s 750 million number as he misspoke. But AJ Sotomayor - she’s a space cadet.
From a legal standpoint that’s outside the bounds of today’s debate. Yes, it applies, but the SC was strictly concerned about law - Does OSHA have legal power to give the order? Does HHS have legal power to give the order?
That's been the SOP of the left for decades, and it's worked. Republicans have willingly gone along.
I agree,I think a lot of the original proposed mandates were “or be tested” weekly. One local meat processor is offering $1000 bonuses to it’s employees to get vaccinated, the bonus goes into effect after 30 days employment. They claim they are having too many employees out sick or quarantined and can’t keep up production demands.
The problems arise when there aren’t enough tests.
What happens when someone documents in writing that they have chosen “test”, and they can’t find anyplace to get tested?
I’m not a big fan of Roberts, but in this hypothetical scenario he wouldn’t necessarily be wrong. As he correctly pointed out about ObamaCare, it’s not the job of the Supreme Court to overturn laws just because they are stupid.
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