By Matthew Vadum
The Supreme Court seemed skeptical of the Biden administration’s bold claim that it has the authority to impose vaccination mandates applying to more than 84 million private sector employees and to workers in federally funded health care facilities.
In a rare Friday sitting the high court seemed broadly receptive to the idea that states have authority to impose vaccination mandates but questioned the ability of federal agencies to do the same.
The court decided Dec. 22, 2021, to fast-track emergency applications pertaining to challenges to the two mandates’ lawfulness as those challenges work their way through the lower courts. Various business groups, along with Ohio, Missouri, Louisiana and two dozen other states, want the federal mandates blocked.
The private sector worker mandate, which imposes penalties on employers of up to $14,000 per violation, is not currently stayed by any court; the health care worker mandate has been frozen by lower courts.
The Supreme Court heard two separate oral arguments Jan. 7 about the two separate mandates.
The first case, National Federation of Independent Business (NFIB) v. Department of Labor, court file 21A244, concerns the Biden administration’s attempt through the Occupational Safety and Health Administration (OSHA) to force employers with at least 100 employees –or most of the nation’s private workforce— to submit to vaccinations aimed at preventing COVID-19 or to regular testing to detect it.
Unless paused, the mandate will begin taking effect this Monday, Jan. 10, NFIB states in a brief.
In the second case, Biden v. Missouri, court file 21A240, the federal government seeks to lift lower court stays blocking it from enforcing a Nov. 4, 2021 emergency regulation by the Department of Health and Human Services (HHS) requiring the COVID-19 vaccination of more than 10 million employees at health care facilities that participate in the Medicare and Medicaid programs.
During oral arguments on the private sector mandate, Chief Justice John Roberts said the federal government may be overreaching.
The executive branch is attempting to “cover the waterfront” by imposing COVID-19 policies on the population at large instead of leaving the matter to Congress, Roberts said.
“This has been referred to … as a work-around,” he said. “This is something that the federal government has never done before, right, mandated vaccine coverage?”
U.S. Solicitor General Elizabeth Prelogar replied: “It’s true that there has been no standard that looks exactly like this one.”
This chief justice said the pandemic “sounds like the sort of thing that states will be responding to or should be … and that Congress should be responding to or should be, rather than agency by agency, the federal government, the executive branch, acting alone is responding to it.”
Justice Neil Gorsuch said health regulations normally fall to the states.
“If there is an ambiguity, why isn’t this a major question that, therefore, belongs to the people’s representatives of the states and in the halls of Congress,” given that the Occupational Safety and Health Act that created OSHA is “50 years old” and “doesn’t address this question,” he asked.
NFIB attorney Scott A. Keller said OSHA’s “economy-wide, one-size-fits-all mandate covering 84 million Americans is not a necessary, indispensable use of OSHA’s extraordinary emergency power which this court has recognized is narrowly circumscribed.”
Keller noted that “just three days ago” the U.S. Postal Service told OSHA that the mandate requirements “are so burdensome for employers that the federal government is now seeking an exemption from its own mandate for the Postal Service.”
“That’s because OSHA’s economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines. OSHA has never before mandated vaccines or widespread testing, much less across all industries,” he said.
OSHA, “a single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies,” Keller said.
Justice Amy Coney Barrett said OSHA’s emergency powers “can be used most effectively as a blunt instrument.”
Justice Elena Kagan said federal agencies have expertise in disease management and asked Keller “why isn’t this necessary to abate a grave risk?”
“This is a pandemic in which nearly a million people have died,” she said.
“It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day; more and more people are getting sick every day,” she said.
Keller said he did not contest “that COVID is a grave danger … but the agency has to consider and explain alternatives.” OSHA, instead “jumped immediately to a vaccine-or-testing mandate.”
Ohio Solicitor General Benjamin M. Flowers told the court that OSHA went about creating the mandate backwards.
“OSHA typically identifies a workplace danger and then regulates it,” he said.
“But, here, the president decided to regulate a danger and then told OSHA to find a work-related basis for doing so,” and created “a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.”
Kagan faulted the description of the mandate as “a blunderbuss approach when everybody knows from living their normal lives that every workplace has been affected by this, save for … a few here and there.”
Justice Stephen Breyer, who is 83 and under pressure from the left to retire to give President Joe Biden a chance to replace him with another, younger liberal justice, said there were “750 million new cases yesterday or close to that is a lot.”
“That’s why I said I would find it … unbelievable that it could be in the public interest to suddenly stop these vaccinations.”
According to the U.S. Census Bureau, the current total U.S. population is only 332.4 million.
In the second hearing, dealing with the health care worker mandate, Principal Deputy U.S. Solicitor General Brian Fletcher said that the preliminary injunctions blocking the mandate need to be lifted because they “are delaying that urgently needed protection for Medicaid and Medicare patients in half the country.”
“Hospitals, nursing homes, and other Medicare and Medicaid providers serve patients who are especially vulnerable to COVID-19 in settings that are especially conducive to the spread of the virus,” he said.
HHS Secretary Xavier Becerra instituted the vaccination mandate because he found that it is “the best way to prevent workers from infecting their patients with a potentially deadly disease,” Fletcher said.
“He also found that any delay in implementing that requirement would cause preventable deaths and severe illnesses,” he said.
Congress gave the power to make “quintessential predictive and policy judgments to the secretary, and the states have identified no basis to disturb his conclusions.”
Missouri Deputy Attorney General Jesus Osete said that in early 2020 as the pandemic raged “millions of health care workers heroically stayed at work. These same workers are now forced to choose between losing their jobs and complying with the government’s vaccine mandate.”
Becerra’s claim of authority “to impose this mandate is expansive, unprecedented, and unlawful.”
Louisiana Solicitor General Elizabeth Murrill said the mandate, which would “force millions of people working for or with a Medicare or Medicaid provider to undergo an invasive, irrevocable, forced medical treatment” is “a bureaucratic power move that is unprecedented.”
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Roberts asked Murrill if she agreed with the federal district court which stated in the case “COVID no longer poses the dire emergency it once did”?
“I think that … those are shifting sands. Obviously, COVID conditions can change at any given time. And they have,” Murrill said.
There is so much that is being left out. What happens to the waste tests? Is that considered a biohazard? How is that disposed of? Who pays for the tests? The company or the employee? Are the vaccinated tested, they can contract the virus and transmit it to others so if they are not tested why not? Would it be discrimination if the employer or other employees targeted or put pressure on the unvaccinated to get the shot against their will?
This seems like a over reach of our executive branch. The President does not have the authority to direct OSHA to execute this directive. Is OSHA suppose to control the virus off the work place also?