Conservative majority in Supreme Court appear skeptical of Biden’s vaccination plan

WASHINGTON – The Conservative Supreme Court majority appeared to lean on Friday to block one of the White House’s key pandemic strategies, expressing skepticism that the Biden administration has the legal power to demand that large employers require workers to be vaccinated or undergo frequent testing.

The plea for that mandate, which exploded in urgent court after a flurry of legal challenges across the country from Republican-led states, business groups and others, raised the possibility that the court deals a severe blow to the Biden. the administration’s efforts to combat the coronavirus as the highly transmissible variant of Omicron continues to spread.

The court seemed more likely to authorize a separate mandate requiring health care workers in facilities receiving federal money to be vaccinated. The settlement, which was the subject of a second case, was consistent with other types of federal oversight of medical facilities and was supported by almost the entire medical facility, some judges said.

But the questioning concerning the employer’s mandate was more biased. The regulation, one of the most ambitious policies imposed by President Biden in an attempt to control the pandemic, would affect 84 million American workers employed by companies with more than 100 workers. Several Tory judges said it was doubtful that a federal workplace safety law would give the administration the legal power to enforce it.

The court can act quickly in the case, which has been argued on an unusually rapid schedule.

Chief Justice John G. Roberts Jr. said states and Congress, rather than a federal agency, were better suited to tackle the pandemic in the country’s workplaces. “This is something the federal government has never done before,” he said, adding the administration’s several virus-related warrants were “a workaround” in response to inaction of Congress.

Judge Amy Coney Barrett said the contested regulations appeared to be too broad in scope by covering all large employers. Meat processing plants and dental offices could be subject to regulation, she said, while landscapers should not.

Justices Neil M. Gorsuch and Brett M. Kavanaugh suggested that the existing law had not authorized the agency to impose the mandate in a sufficiently clear manner, given the political and economic issues.

The hearing came as the Omicron variant led to a surge in coronavirus cases, preventing people from returning to the office and increasing hospitalizations. Economists fear that the increase in the number of cases will halt job growth in the coming months.

The court’s three more liberal judges said the warrant was a necessary response to the public health crisis.

“This is a pandemic in which nearly a million people have died,” Judge Elena Kagan said. “This is by far the greatest public health hazard this country has faced in the past century.”

“We know the best way to prevent the spread is for people to get vaccinated,” she said.

Judge Stephen G. Breyer said he would find it “unbelievable that it might be in the public interest to suddenly stop these vaccinations”.

Some of the participants in the arguments were absent from the courtroom, possibly due to the pandemic. Judge Sonia Sotomayor, who suffers from diabetes and was the only member of the court to wear a mask since the judges returned to the courtroom in October, participated remotely from her cabinet.

Friday, seven of the judges wore masks on the bench for the first time. The exception was Judge Gorsuch, who sits next to Judge Sotomayor.

Two of the attorneys – Benjamin M. Flowers, the Solicitor General of Ohio, and Elizabeth Murrill, the Solicitor General of Louisiana – participated by telephone. Courts Covid-19 protocols demand that avocados be tested for the virus.

All judges are fully vaccinated and have received a booster, a court spokeswoman said.

The Supreme Court has repeatedly upheld state vaccine mandates in various contexts against constitutional challenges. The cases in court are different, as they primarily ask whether Congress has authorized the executive branch to institute the requirements.

The answer will mainly depend on the language of the relevant laws and whether the administration followed the proper procedures to issue the requirements.

Perhaps the most critical issue for the Biden administration was how the court would react to the employer’s vaccine or testing mandate. The administration estimated that the rule would vaccinate 22 million people and prevent 250,000 hospitalizations.

It was released in November by the Occupational Safety and Health Administration, or OSHA, of the Department of Labor.

Employers are allowed to give their workers the option of getting tested every week instead of getting vaccinated, although they are not required to pay for the test. The rule makes an exception for employees with religious objections and those who do not come into close contact with others at their work, such as those who work from home or exclusively outdoors.

Under a 1970 statute, OSHA has the power to make emergency rules for workplace safety, provided it can demonstrate that workers are exposed to serious danger and that the rule is necessary.

Judge Kagan said the pandemic surely qualifies. “Do you know of any workplaces that have not fundamentally changed over the past two years? She asked Mr. Flowers.

He replied that the coronavirus was a general risk like terrorism and not a danger in the workplace.

“Why not?” Justice Kagan asked, noting that working side-by-side with other employees for eight hours or more is what happens in the workplace.

But Judge Gorsuch said the agency’s power was limited to specific workplace hazards. “Traditionally,” he said, “OSHA has rules that affect workplace hazards that are unique to the workplace and do not involve hazards that affect individuals around the clock. “

Judge Samuel A. Alito Jr. asked whether the court should briefly suspend consideration of the case, National Federation of Independent Businesses c. Department of Labor, No. 21A244. He noted that OSHA said it could start citing companies for non-compliance on Monday.

Solicitor General Elizabeth B. Prelogar, representing the federal government, said she would defer to the court’s judgment, but noted that Monday’s deadline was only for record keeping and masks and that the agency would not enforce the testing requirement until Feb. 9.

Scott A. Keller, a lawyer for a group of companies challenging the demands, said “we need a stay now before enforcement begins.”

“Our members are to publicly submit their plans on how to comply with this regulatory giant on Monday,” he said. “The vaccines should be done by February 9. You would need two vaccines to comply. These vaccines should start immediately. Tracking and record keeping cannot happen overnight.

The second case involved a measure requiring workers in hospitals and other health care facilities who participate in Medicare and Medicaid programs to be vaccinated against the coronavirus. The requirement at issue in this case, Biden v. Missouri, n ° 21A240, would affect more than 17 million workers, the administration said, and “would save hundreds, if not thousands of lives every month.”

States led by Republican officials challenged the settlement, obtaining injunctions against it covering about half of the country.

Brian H. Fletcher, a federal government lawyer, argued that a federal statute gave him broad power to impose regulations regarding patient health and safety in facilities that receive federal funds. The law gives the secretary of health and human services general authority to issue regulations to ensure the “efficient administration” of Medicare and Medicaid programs, and parts of the law relating to various types of facilities generally allow the secretary to impose requirements to protect patient health and safety.

Judge Barrett said the patchwork of statutory authorities complicates the case and may require different responses for different types of facilities.

Judge Kavanaugh said the case was unusual because “people who are regulated don’t complain about regulation here.” On the contrary, he said, hospitals and health care groups “seem overwhelmingly backing him.”

Jesus A. Osete, a lawyer from Missouri, said the vaccination requirement would lead to the departure of healthcare workers, leading to a crisis in rural hospitals. “This will effectively deprive our citizens of health care,” he said.

Justice Kagan responded that infected workers were dissuading patients from getting the care they needed. “People don’t show up at hospitals because they are afraid of getting Covid from staff,” she said.

She added that regulating healthcare workers comes down to a simple command. “Basically the only thing you can’t do is kill your patients,” she said. “So you need to get vaccinated so you don’t pass on the disease that can kill elderly Medicare patients, which can kill sick Medicaid patients.”