The Supreme Court on Friday weighed whether a pair of vaccine-related mandates from the Biden administration governing large businesses and health care facilities can move forward, putting on display the national divide over Covid-19 vaccination and highlighting the latest surge, driven by the Omicron variant.
Most of the conservative justices sounded sympathetic to business interests and Republican-led states trying to block the broadest rule, an Occupational Safety and Health Administration standard covering firms with more than 100 employees, but liberal justices sounded flabbergasted at the arguments that the rules should be halted amid the latest, huge wave of infection. The impact of that wave was evident at Friday’s hearing, which featured remote participation by Justice Sonia Sotomayor, who a court spokesperson said was "not ill," as well as attorneys arguing against the vaccination mandates.
"There are three quarters of a million new cases yesterday. … That’s ten times as many as when OSHA put this rule in," Justice Stephen Breyer, an appointee of President Bill Clinton, said. "The hospitals are today, yesterday, full almost to the point of the maximum they’ve ever been with this disease. … I would find it unbelievable that it could be in the public interest to suddenly stop these vaccinations."
"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," said Justice Elena Kagan, an appointee of President Barack Obama. "More and more people are dying every day. … There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves."
But Justice Clarence Thomas questioned whether the current danger from Covid amounted to the kind of crisis that justified the Occupational Safety and Health Administration using an expedited process issuing an "emergency temporary standard" requiring most workplaces with more than 100 workers to enforce a vaccinate-or-mask-and-test mandate.
"The vaccine’s been around quite some time. Covid’s been around even longer," Thomas, an appointee of President George H.W. Bush, said. "The government could have had notice and comment."
Among the six Republican-appointed justices, only Chief Justice John Roberts, nominated by President George W. Bush, sounded open to allowing the OSHA rule to take effect. But as the arguments progressed, Roberts seemed more skeptical about the Biden administration’s power to act without specific legislation from Congress. The chief justice said he doubted that the creation of OSHA in 1970 contemplated broad vaccine mandates.
“That was 50 years ago that Congress acted,” Roberts said. “I don’t think it had Covid in mind. That was almost closer to the Spanish flu than to today’s problem.”
However, U.S. Solicitor General Elizabeth Prelogar told the court that the statute authorizing OSHA specifically mentions vaccines and that the need for action is critical.
“We think that there are lives being lost every day,” Prelogar said.
By the end of the three-and-a-half-hour session, the high court’s Republican-appointed majority sounded likely to block the large-workplaces rule, but inclined to side with the Biden administration at least for now on its claim of power to impose vaccine requirements on workers in the health care field. Both liberal and conservative justices noted that the health-care-worker rule wasn’t a direct mandate, but issued as a condition of federal funding for Medicare and Medicaid.
Kagan and Breyer said the power to require vaccinations for workers providing those services seemed part and parcel of the power to impose other infection control measures.
“Basically, the one thing you can’t do is to kill your patients,” Kagan said. “That seems like a pretty basic infection prevention measure.”
Breyer noted that the death toll earlier in the pandemic in nursing homes was enormous.
“We know what happened from Massachusetts and New York in the old people’s homes,” the longtime Massachusetts resident said.
And Roberts said Health and Human Services Secretary Xavier Becerra appeared entitled to some deference in what sorts of controls his department imposes.
“I’m not saying there’s not some limit there. I don’t know why a provision addressing an infectious disease of this scope is beyond the secretary’s determinaiton that the mandate at issue here is necessary,” the chief justice said.
However, lawyers for the states opposed to the health care mandate said it will unleash chaos at small hospitals and clinics, especially in underserved, rural areas, because unvaccinated employees will quit.
“Without the injunction, rural America will face an imminent crisis,” said Missouri Deputy Solicitor General Jesus Osete. “This mandate will close the doors of many of these rural facilities…..That is going to be devastating.”
Osete said the Biden administration failed to take account of the impact in much of the country. “What may work in Detroit and Houston, may actually be counterproductive in Memphis, Missouri, or for that matter, El Dorado, Ark.,” he said.
Louisiana Solicitor General Elizabeth Murrill said the health care mandate was less about protecting patients in nursing homes and hospitals, and more about the Biden administration grabbing every tool it could to boost vaccination levels in the general public.
"It’s a bureaucratic power move that is unprecedented," she said. "This is targeted at people. It’s not targeted at facilities."
But nearly all the conservative justices expressed doubts about the challenge to the health care worker rule.
Justice Brett Kavanaugh, an appointee of President Donald Trump, suggested it was odd that states were putting up a fight, while most hospitals and nursing homes have not. "The people who are regulated are not here complaining about the regulation," he said.
Thomas questioned whether the states had standing to raise arguments on behalf of their citizens, although the states noted that they directly provide some services covered by the rules.
And Justice Amy Coney Barrett, who was also appointed by Trump, said the administration’s claims of power to regulate entities like hospitals and and nursing homes might be stronger than in the case of other providers, such as home health aides.
The omnipresence of the pandemic was clear not only from Sotomayor’s absence from the courtroom, but by the fact that both Murrill and Ohio Solicitor General Benjamin Flowers argued by phone.
A court spokesperson said Sotomayor, also an Obama appointee, chose to join from her chambers in the Supreme Court building. She has suffered from diabetes since childhood and wore a mask at prior in-person arguments even when other justices did not.
Some of Sotomayor’s early questions Friday were inaudible on the audio feed the court provided for the public to listen in to the arguments. However, the other justices and the lawyers appeared to be able to hear her, and her audio eventually returned.
Flowers was absent from the courtroom after testing positive for coronavirus last month, his office said.
"His symptoms were exceptionally mild and he has since fully recovered. The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely," Bethany McCorkle, a spokesperson for the Ohio attorney general’s office, said via email.
Flowers told the justices he is "triple-vaccinated" and that his recent infection showed that "vaccines do not appear to be very effective at stopping the spread or transmission" of the new variant. He also said the ease of contracting the virus just about anywhere highlights that the OSHA rule doesn’t really address a work-related problem.
"It’s not truly intended to regulate a workplace danger. It’s a danger we all face simply by waking up in the morning," Flowers said.
Kagan made clear she disagreed.
"Do you know of any workplaces that have not fundamentally transformed themselves in the last two years? … Everybody knows from living their normal lives that every workplace has been affected save for, you know, a few here and there," she said.
Kagan also noted that workers have less control over contact at work than in other venues. "You have to be there with a bunch of people you don’t know who might be completely irresponsible," she said.
Lower courts have issued conflicting rulings on the mandates, which cover tens of millions of workers and are central to President Joe Biden’s effort to combat the spread of the virus. The justices will likely rule only on whether the administration can continue to enforce the rules while punting the decision on the underlying regulations — which are being challenged by Republican-led states, businesses and religious groups — back to those courts.
However, the justices’ questions Friday and their ruling could provide hints of the ultimate fate of the vaccine mandates — and of how the administration will approach their implementation as it awaits a final decision.
“It’s going to leave folks with at least a little more clarity as to what the next few weeks might bring,” said attorney Jim Paretti, who represents employers for law firm Littler and is not involved in the cases. But “I’m not optimistic that we will have final answers.”
The broader mandate, from the Department of Labor’s OSHA division, requires employers with 100 or more employees to ensure that their workers are vaccinated or tested weekly and wear masks at work. The other one the court considered, issued by the Department of Health and Human Services, requires employees of health care facilities receiving federal funding to get the jab.
Both requirements, which would affect tens of millions of workers, have been in legal limbo since the Biden administration issued them last year.
The Labor Department mandate was initially blocked by the 5th Circuit Court of Appeals, but the 6th Circuit appeals court lifted the stay after it was chosen via lottery to hear a consolidated version of the various legal challenges to the mandate.
In the health care workers’ case, the Justice Department is asking the Supreme Court to stop two injunctions on the mandate that were issued by federal district courts in Louisiana and Missouri.
Those challenging the OSHA regulations contend that the agency lacked the legal authority to impose them. They point to, among other things, a 1980 Supreme Court decision that declared OSHA’s ability to issue such emergency temporary standards is “narrowly circumscribed” — which, the challengers say, the vaccine-or-test mandate is not.
“Even in OSHA’s rose-colored view, the Mandate imposes vaccine-or-testing requirements for 84 million Americans … and imposes these requirements on every single industry in the country, amounting to over 264,000 businesses,” Job Creators Network, a business group among those leading the charge against the regulations, said in a filing with the Supreme Court.
The administration counters that OSHA is well within its authority and that lives are at stake if the mandate is blocked.
"OSHA properly determined that [Covid-19] is both a physically harmful agent and a new hazard; that exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at greatest risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and that the Standard is necessary to protect those employees from the danger of contracting COVID-19 at work," the administration said in its court filing.
Last month, the Biden administration suspended plans to enforce the vaccine mandate for health care workers, after lower courts froze the measure in two dozen mostly Republican-led states. The administration says that Medicare and Medicaid patients in covered facilities are among the most vulnerable to coronavirus and deserving of protection from their health care providers.
Biden announced the requirement on Sept. 9 as part of a dramatic expansion of the administration’s bid to boost vaccination rates as it redoubled efforts to rein in the virus. Officials anticipated the mandate will affect more than 50,000 health facilities and 17 million workers.
After the 8th Circuit U.S. Court of Appeals turned down the Biden administration’s request that a temporary freeze on the mandate in 10 states be lifted last week, the U.S. Court of Appeals for the 5th Circuit partially lifted a nationwide block on the CMS mandate.
It can now be enforced in about half of the states and is blocked in Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Utah, Virginia and Wyoming.
Litigation is also pending in other courts over other Covid-19 vaccination mandates imposed by the Biden administration, including ones for uniformed military personnel, federal workers and federal contractors. Those cases have yet to reach the Supreme Court and were not the focus of arguments Friday, but Roberts did say he considers the issue of vaccines for the armed forces to be very different.
“The military’s on its own. They take orders,” he said.
Adriel Bettelheim contributed to this report.
CORRECTION: An earlier version of this story incorrectly described Breyer’s ties to Massachusetts. While he has lived there for decades, he was born in California.