Supreme Court hears challenges to Biden’s vaccine rules for workers

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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.

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11 thoughts on “Supreme Court hears challenges to Biden’s vaccine rules for workers

  1. Many of the questions by the “3 liberal justices” contained many assumptions that were simply NOT TRUE–asserting that hospitals are dangerously overrun, that the vaccine prevented transmission of the virus, that 100,000 children are “serious condition” (the current national pediatric COVID census per HHS is 3,342. Many/mostly incidental), that Omicron is causing more deaths than any of the other previous variants….all misinformation. I would guess those 3 justices also think January 6 was an actual existential threat to democracy and comparable to Pearl Harbor and 9/11. It is sad that the branch of the government that is supposed to be the most impartial is in fact the most biased of all.

    1. I hope you have your tin foil hat nearby.

      Did you notice IU heath and Riley hospital are asking the National Guard for help? COVID is the pandemic of the unvaccinated, and yes getting vaccinated cuts down on the time you are infectious by half.

      And since all of your other points are indefensible, good way to distract with a welll timed “whatabout”. The January 6th insurrection was pretty horrific. We almost had an overthrow of the government orchestrated by one mans ego.

    2. It’s ok Mark.

      Not worth the effort at this point.

      Sotomayor made several erroneous/anecdotal comments as she is a medical expert it seems.

      I’m waiting for Pelosi’s next candle lit vigil that Joe B. will community organize praising the vaccinated.

      (Can I attend via Pocahontas’ private jet?)

    3. Just talk to another of your Russian disinformation puppets that you follow, J C B. Maybe get better at doing your own research. Heck, call the MyPillow guy. I bet you buy enough pillows you can fly on his plane.

      I’d rather not be on the same side as Nancy Pelosi for anything, but considering the Republican Party wants America to become a fauxmocracy like Hungary or Russia, guess I have to deal with it for a moment like Liz Cheney. You remember her, she’s the person Republicans have decided to punish for January 6th.

      Speaking of January 6th, even 45% of Republicans found it threatening to democracy. The events of that day and resulting trial were the Republicans’ last chance to prove they actually were a real political party and not just a authoritarian personality cult. It really was a litmus test – if you’re still supporting Trump or Republicans after that, well, you just hate America. You hate the idea of everyone being equal or everyone getting to vote. You just do, and don’t bother trying to convince me otherwise.

      And don’t even bother telling me there was election fraud. There wasn’t. A reminder, Republicans counted the ballots in Arizona and found more votes for Biden.

      “Nearly a year after the Jan. 6 attack on the U.S. Capitol, a strong majority of Americans condemn it and believe former President Donald Trump is at least partially to blame. But partisan splits have hardened over time, with Republicans still largely backing Trump’s version of events, a new ABC/Ipsos poll finds.

      An overwhelming majority (72%) of Americans believe the people involved in the attack on the Capitol were “threatening democracy,” while 1 in 4 Americans believes that the individuals involved were “protecting democracy.” Broken down by party identification, Democrats are nearly unanimous (96%) in believing that those involved in the attacks were threatening democracy. Republicans are more split, with 45% saying it was a threat and 52% saying those involved in the riot were “protecting democracy.”

    4. Yes, I’m going to value the perspective of a bunch of folks who don’t trust anyone but Donald Trump … especially since a bunch of these folks who do their own research and think they’re smarter than the experts …. also actually thought JFK Jr. was going to come out of hiding in Dealey Plaza and went out there and waited for him.

      And also thought that all of us who were vaccinated were going to explode when they turned up the 5G power the other day…

      But go on about how I’m the clown show. Sure.

    1. So what? Clearly he was able to work, indicating mild symptoms that 2 Yafo would have been called a cold.

  2. How odd the WaPo article didn’t mention the Obama Judge’s completely made up data. Their fact checkers must have the week off.
    I assume she will have her social media shut down for spreading Covid misinformation

    1. I’m all for throwing the book at any members of our government who use made up data to justify their actions.

      So, those “election security” laws….