The Supreme Court is holding a special session Friday to consider challenges to the Biden administration’s most significant intervention to mitigate the spread of the coronavirus and its public health impacts—vaccine policies that cover about 100 million American workers.
The justices will hear hours of arguments over a vaccine-or-test requirement for workers at the country’s largest companies, and a separate vaccine mandate for health-care personnel at facilities that receive federal Medicaid and Medicare funds.
White House press secretary Jen Psaki on Thursday said the policies are “critical to our nation’s COVID-19 response.”
“Unvaccinated Americans continue to face a real threat of severe illness and death—including from omicron,” Psaki said in a statement, referring to the highly transmissible coronavirus variant fueling a steep increase in infections. “The need and the urgency for these policies is greater than ever, and we are confident in the legal authority for both policies.”
Washington lawyer Scott Keller, representing the National Federation of Independent Business, told the justices Friday that the vaccine or test requirements directed by the Occupational Safety and Health Administration (OSHA) were an unprecedented imposition by the federal government on private workplaces.
“Our nation’s businesses have distributed and administered hundreds of millions of COVID vaccines to Americans. Businesses have encouraged and incentivized their employees to get vaccines,” Keller told the court. “But a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.”
The court’s three liberal justices repeatedly expressed disbelief that opponents are seeking to block a vaccination policy at a time when the pandemic is still raging. They framed their questions against the backdrop of rapidly increasing COVID infections, hospitalizations and deaths.
“More and more people are dying every day. More and more people are getting sick every day,” said Justice Elena Kagan. “This is the policy that is most geared to stopping all this.”
Keller said state officials and private businesses can and have acted, but that the federal government’s policy would impose new costs and cause a “massive economic shift” by leading employees to quit.
Justice Sonia Sotomayor pointed out that “catching COVID keeps people out of the workplace for extraordinary periods of time.”
Justices Amy Coney Barrett and Chief Justice John Roberts asked whether the OSHA could have instead imposed a more targeted policy based on specific workplaces that put employees in close contact, such as a factory assembly line or poorly ventilated setting.
Ohio solicitor general Benajmin Flowers agreed that the policy was too sweeping in scope and “not truly intended to regulate a workplace danger. It’s a danger that we all face simply as a matter of waking up in the morning.”
The hearing is taking place in a building that has been closed to the public for nearly two years because of the pandemic. Only court staff, lawyers in the cases, credentialed reporters and the justices’ law clerks are allowed to attend oral arguments, and all must be masked and possess negative test results for the coronavirus.
Sotomayor is participating remotely from her chambers Friday and two of the six lawyers will argue by phone, a court spokesperson said.
Technically, the court is not deciding the legality of the administration’s initiatives, only whether they may be implemented while lawsuits challenging them continue. In a highly unusual move, the court scheduled a public hearing to consider the emergency requests—and daily case counts have risen dramatically since then.
But if the conservative court sides with challengers, it will have the practical effect of halting Biden’s most ambitious plans to increase the nation’s vaccination rate by means other than exhortation.
The 27 Republican-led states protesting the emergency rules that would cover about two-thirds of the nation’s workplaces told the Supreme Court that they share the administration’s “strong interest in combating the spread of a virus” that has killed more than 800,000 Americans.
“But federal agencies cannot bend the law to pursue whatever means they think will most effectively bring about a worthy end,” the brief states.
It is unclear when the court would rule.
At issue are two Biden administration initiatives.
One comes from OSHA, which has authority to issue emergency workplace rules for up to six months to protect employees “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.”
The administration contends that gives the agency not only the authority but also the responsibility to act. The temporary rule would give companies with 100 or more workers a choice: mandate all employees be vaccinated or require unvaccinated employees to provide weekly negative coronavirus test results and wear face coverings to work on-site.
The rules were set to take effect Jan. 4, but OSHA pushed back the date in response to the litigation and said it would not immediately issue citations for those not in compliance.
Soon after the administration announced the rules for private companies in November, the U.S. Court of Appeals for the 5th Circuit blocked enforcement of the policy.
But lawsuits sprung up around the nation and were consolidated for review by a different court. A panel of the U.S. Court of Appeals for the 6th Circuit dissolved the 5th Circuit’s stay, saying the rules could go into effect.
The 6th Circuit’s 2-to-1 decision called the OSHA policy an “important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our health care system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”
The other challenged policy is a Centers for Medicare and Medicaid Services vaccination requirement for more than 17 million health-care workers at 76,000 facilities that receive federal money tied to those programs.
The administration points to federal law that gives the secretary of health and human services the ability to impose requirements necessary for the “health and safety” of patients.
For decades, it says, the secretary has had authority to require participating health-care providers to establish programs for the prevention and control of infectious diseases within the facilities.
A panel of the U.S. Court of Appeals for the 11th Circuit dismissed a request from Florida to stop the requirement. But a district judge in Missouri stopped the rules, and the 5th Circuit agreed with a challenge from Louisiana.
At the Supreme Court, Republican-led states again led the challenge, saying such an expansive vaccination rule must be expressly allowed by Congress.
“The mandate would force millions of workers to choose between losing their jobs or complying with an unlawful federal mandate,” the states’ filing said. “But for the district court’s preliminary injunction, last year’s health care heroes would have become this year’s unemployed.”
But the Biden administration said its authority is clear.
“It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes, and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” it said in a brief to the high court.