The Supreme Court seemed skeptical this morning 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.
In a rare Friday sitting the high court seemed broadly receptive to the argument 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 court was in the process of hearing two separate oral arguments Jan. 7 on the mandates. At time of writing, the first argument, which was on the private sector mandate, had been completed, running more than twice as long as the allotted 60 minutes.
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, at which point “America’s businesses will immediately begin incurring billions in nonrecoverable compliance costs, and they will lose employees amid a preexisting labor shortage,” NFIB argues in a brief.
“OSHA’s sweeping regulatory dictate” will “irreparably injure the very businesses that Americans have counted on to widely distribute COVID-19 vaccines and protective equipment to save lives—and to keep them fed, clothed, and sustained during this now two-year-long pandemic.” The mandate will also “convert hundreds of thousands of businesses into de facto public health agencies for two-thirds of America’s private employees.”
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.
If the injunctions that are currently in place pausing the HHS mandate are not lifted “hundreds or thousands of deaths and serious illnesses from COVID-19 that could otherwise be prevented” will probably occur, the Biden administration argues in a brief.
During oral arguments on the private sector mandate, Chief Justice John Roberts said the federal government appears to 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 workaround,” he said. “This is something that the federal government hasn’t done before.”
This pandemic “sounds like the sort of thing that states will be responding to or should be and Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone,” the chief justice said.
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 in the states and in the halls of Congress?” he said.
NFIB attorney Scott A. Keller said OSHA’s “economy-wide, one-size-fits-all mandate covering 84 million Americans is not a necessary and indispensable use of OSHA’s extraordinary emergency power which this court has recognized is narrowly circumscribed.”
Keller noted that 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,” he said.
OSHA, “a single federal agency tasked with occupational standards, cannot commandeer businesses economy-wide,” Keller said.
Justice Elena Kagan said federal agencies have expertise in disease management and suggested OSHA has the authority to make the mandate because “this is a pandemic in which nearly a million people have died.”
“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.”
The second hearing, dealing with the health care worker mandate, was underway at press time.
This is a developing story. It will be updated.
