WASHINGTON — The Supreme Court’ss conservative majority cast doubt Friday on President Joe Biden’s plan to require that most American employees be vaccinated for COVID-19 or undergo weekly testing.
The justices agreed to weigh in on the partisan divide over vaccines and hear from lawyers for 27 Republican-led states, who argued the Democratic administration had overstepped its authority.
In their comments and questions, justices sounded split along the same lines, with the three Democratic appointees voicing strong support for Biden’s plan while the six Republican appointees voiced steady skepticism. The conservatives are skeptical of new and far-reaching federal regulations, and they questioned the notion that Congress had or would authorize strict workplace rules for two-thirds of the nation’s employees.
In sharp contrast, the liberal justices said they were astonished the high court might block a requirement for employees to be vaccinated against a virus that has killed more than 800,000 Americans.
Justice Elena Kagan said federal law authorized the Labor Department to adopt “emergency” rules that are necessary to protect employees from a grave danger. “Why isn’t this necessary to abate a grave risk?” she asked. “This is by far the greatest public health danger that this country has faced in the last century. We know that the best way to prevent spread is for people to get vaccinated.”
There “were three-quarters of a million new cases yesterday,” said Justice Stephen G. Breyer, and hospitals are filling up again. He said it would be “unbelievable” for the court to say it would “be in the public interest to stop these vaccinations.”
Justice Sonia Sotomayor, who has been treated for diabetes since she was a child, did not come to the courtroom, but participated from her office by phone. She insisted that the Biden rule not be described as a “vaccine mandate,” since it gives employees a choice on whether to be vaccinated or undergo weekly testing.
None of the conservative justices spoke in defense of Biden’s rules. Instead, they characterized them as an overreach.
“This is something the federal government has never done before,” said Chief Justice John G. Roberts Jr. He said states have broad authority to set rules for public health and safety, but federal authority is limited. He noted that the court had turned down several challenges to state laws that required employees to be vaccinated.
“It’s not our role to decide public health questions, but it is our important job to decide who should decide those questions,” said Justice Neil M. Gorsuch. “Here our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments.”
“Why isn’t this a major question that, therefore, belongs to the people’s representatives of the states and in the halls of Congress?” he asked. “Congress had a year to act on the question of vaccine mandates” and has not passed such a measure, he said.
Solicitor General Elizabeth Prelogar, representing the Biden administration, disagreed. “We think that Congress has already acted here in passing (the law) to authorize OSHA (Occupational Safety and Health Administration) to take this kind of specific action in response to an emergency situation. COVID-19 is a great danger. It’s a physically harmful agent, and the agency found that these measures are essential to protect workers.”
While most of the justices hinted they would block Biden’s rule affecting employers with more than 100 employees, they sounded closely spit on the second rule — also before the court — affecting hospitals and nursing facilities. That rule, based on the Medicare Act, says all workers in facilities that serve elderly and sick patients must be vaccinated for COVID-19.
Roberts said that rule was closely tied to health care and could be justified in an emergency. But several of the more conservative justices suggested they would vote to block that rule as well.
It’s not clear how the court will proceed. The justices may issue a short-term “administrative stay” to put the rules on hold while they work on an opinion deciding the two cases.
Biden proposed the two rules in the fall after it became clear that a significant percentage of employees were refusing to accept the vaccines which could protect them and slow the spread of the virus. But Republican state attorneys sued to block the measures, and they were joined by an array of business groups and conservative organizations.
In the first case heard Friday, the court will decide whether the administration can require employers with 100 or more workers to ensure either all employees are vaccinated or undergo weekly tests for COVID-19. This rule is based on the Occupational Safety and Health Act of 1970, which gives the Labor Department the authority to issue an emergency temporary standard to protect employees (who) are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.
The administration says the virus is a new hazard that represents a grave danger.
The Republican lawyers said the virus is not a distinctly occupational danger. OSHA may only regulate work-related dangers, and the virus spreads everywhere, argued Ohio Attorney General Dave Yost in a brief filed this week along with the other 26 Republican states. Lawyers for businesses also said companies would lose vital workers if a vaccine mandate were put into effect.
When Biden first proposed the rule, the White House said it could affect 84 million employees nationwide. Conservative judges quickly put the rule on hold, but on Dec. 17, the Ohio-based 6th U.S. Circuit Court of Appeals, in a 2-1 decision, lifted those orders and said the rule may take effect.
That set the stage for the high court to take up the issue on a fast-track basis. The lead case is called National Federation of Independent Business v. Department of Labor.
In the second set of the cases, the court will decide whether hospitals, nursing homes and other facilities that serve Medicare and Medicaid patients must require their workers to be vaccinated.
This requirement is based on Medicare and Medicaid rules that say facilities receiving federal funds must meet the standards that federal health officials determine are necessary in the interest of the health and safety of their elderly and sick patients.
Solicitor General Prelogar told the court this vaccine rule has the nearly universal support of leading medical and public health organizations. She also noted it includes exemptions for medical and religious reasons. The White House said this rule could affect 17 million employees.
But Republican state attorneys sued and won rulings from Trump-appointed judges in Missouri, Louisiana and Texas who put the rule on hold in 25 states. They said hospitals in rural areas would lose employees if they were told they must be vaccinated.
The case before the court is called Biden vs. Missouri.