Justices Appear Sharply Divided Over Biden Vaccine Mandates

WASHINGTON — In a rare Friday hearing, the Supreme Court this morning considered to what extent the Biden administration can impose COVID-19 vaccine mandates on large employers and health care workers.

Throughout the oral arguments on the consolidated cases National Federation of Independent Business v. Department of Labor and Biden v. Missouri, the conservative majority of justices appeared to suggest the Biden administration may have taken unnecessary shortcuts when it imposed the mandates.

The three liberal justices, meanwhile, strongly asserted the mandates appear to be a lawful exercise of executive power in a time of a dire national health emergency.

The outcome of the case could affect about 84 million American workers, and the arguments come at a time when there are more than 610,000 cases of COVID in the U.S., and more than 116,000 hospitalizations thanks largely to the highly contagious omicron variant.

These statistics are courtesy the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention.

Time is of the essence, as the Occupational Health and Safety Administration has said it plans to begin enforcing the vaccine mandate on Monday, Jan. 10, though it has also said it will not issue citations for noncompliance with its testing requirements before Feb. 9. 

In the first case, the justices considered whether the Biden administration exceeded its authority by imposing a vaccine or test mandate on companies with more than 100 employees. The 5th and 6th U.S. Circuit Courts of Appeal handed down conflicting rulings on the issue.

The 5th Circuit placed a stay on the mandate until legal challenges to it could be resolved. The 6th Circuit overturned the 5th Circuit ruling and reinstated the mandate, leading to a petition from more than two dozen business associations for a hearing before the Supreme Court.

“The 6th Circuit’s decision is a gut punch to America’s small businesses who are struggling to stay in business as they come out of the pandemic,” said Karen Harned, executive director of the National Federation of Independent Business Small Business Legal Center, after the 6th Circuit Court overturned the stay. 

“Small businesses are managing several challenges and this impending vaccine mandate only exacerbates those challenges. OSHA simply does not have the emergency authority to regulate American workers under such a mandate. NFIB will continue to fight against this illegal and unconstitutional mandate all the way up to the U.S. Supreme Court,” Harned said.

In the second case, the justices considered a very similar question, but only as it applied to a specific subset of workers — health care workers at facilities that receive federal funding. This fall, three federal judges enjoined the mandate’s enforcement in 25 states.

Jonathan H. Alder, the Johan Verheij memorial professor of Law at the Case Western Reserve University School of Law in Cleveland, Ohio, has written extensively on both mandates.

In pieces he provided to The Well News, he argues the vaccine mandate imposed by the Centers for Medicare and Medicaid Services on employees of health care facilities is both “more stringent and far-reaching than the OSHA standard.” 

“First, it applies to all employees, volunteers, and others who provide services at covered facilities (including, for example, physicians with admitting privileges who may occasionally show up on site to provide care). The only people who are categorically exempt are those who are completely offsite and do not interact with patients or other staff,” Alder wrote in Reason magazine.

He also noted that the CMS rule requires covered facilities to provide religious and medical exemptions, but only insofar as this would be required under federal law. 

“Specifically, covered facilities must allow religious exemptions insofar as this is required by Title VII of the Civil Rights Act, and medical exemptions for those with recognized medical conditions for which vaccines are contraindicated … The regulation does not otherwise provide for exemptions or opt outs. 

“So, unlike with the OSHA rule, facilities cannot comply by offering weekly testing combined with a masking requirement,” Alder said.

Opponents of both mandates claim the administration overstepped its authority because it did not use a notice-and-comment procedure to gather public input before imposing the mandate — a violation of due process, they claim —that it did so without adequately considering the consequences to those affected, and finally that federal agencies can’t exercise powers not granted to them by Congress.

The vaccine disputes came to the court last month on an emergency basis, and the justices decided to fast-track the cases for oral argument, something they’ve done twice before this term for time-sensitive cases.

The other two instances were hearings held on restrictive anti-abortion law and a religious-liberty claim made by a death row inmate.

Earlier this week the court announced all of the justices had received their vaccine booster shots, nevertheless, Justice Sonia Sotomayor opted to participate in Friday’s session via telephone. Two of the six attorneys appearing before the court also took part in the oral arguments by phone, one because he had tested positive for COVID.

Scott Keller, the solicitor general of Texas and the attorney arguing against the federal vaccine-or-test mandate, said opponents of the mandate “understand the gravity of the situation” but on balance, given the “Sheer size and scope of the emergency power that is supposed to be exercised delicately, we are entitled to a stay.”

Later, of the mandate itself, he argued “OSHA cannot commandeer businesses into becoming ‘de facto public health agencies.’”

This prompted Justice Stephen Breyer to wonder aloud whether it could, if such a step is in the public’s interest.

This inspired a debate around the concepts of “necessary” and “grave” and the exercise of emergency power.

Justice Elena Kagan asked why this current situation — the coronavirus pandemic that has killed more than 832,000 people in the US — doesn’t count as “necessary and grave.”

In response to a question from Justice Clarence Thomas, Keller explained that in his view, emergency power should be exercised only when “necessary” not just “reasonably necessary.”

“So you would need more than ‘a lot of bad things could happen’ to justify an emergency temporary standard?” Thomas asked.

“It would need to be a step taken to abate a grave danger in a temporary setting,” Keller said. “And of the 10 prior emergency temporary standards adopted by OSHA, none included vaccines or tests.”

“So the government could have had a notice-and-comment period for the new rule, given the extended pandemic, rather than imposing the ETS,” Thomas said.

“Yes,” Keller responded, “Judge Larsen, of the 6th Circuit, said the same.”

The reference was to U.S. Circuit Judge Joan Larsen, who dissented from the 6th Circuit’s ruling in the case arguing that OSHA does not have the statutory authority to implement the emergency temporary standard because it was not narrowly tailored to only include requirements “necessary” to protect employees from “grave danger.” 

Specifically, Larsen held the emergency temporary standard was overbroad as there were other reasonable alternatives, such as requiring vaccination only for the most vulnerable workers, and because the ETS applied to young workers who do not typically experience significant symptoms from COVID-19. 

Larsen also said the measure violates the major questions doctrine because OSHA has never issued an emergency temporary standard mandating vaccination on such a broad scale and that petitioners will be irreparably harmed because of the potential adverse employment action some employees will face and the potential worker shortage the vaccine mandate may cause.

All of this brought Justice Elena Kagan to a boil.

“The coronavirus pandemic has killed more than 832,000 people in the U.S. – why isn’t this [step] necessary to abate a grave risk?” she asked.

“This is by far the biggest public health emergency the U.S. has ever faced! This is the policy that is most geared to stopping all this. … it’s an extraordinary use of emergency power in an extraordinary circumstance!”

Keller offered a concession: “We admit it’s a grave danger.”

But by now, Kagan was incredulous.

“I don’t see this as a typical situation,” she said. “We all know the best way to prevent spread and dangerous illness and death is to get vaccinated. Second best is to wear masks. Why isn’t that necessary?! It’s what must be done.”

“States can do this, individual companies can do it, but OSHA can not,” Keller said. 

Chief Justice Roberts intervened.

“You say this is not a workplace issue, that it’s an out-in-the-world issue. What about assembly line workers in close contact? That’s a greater risk [of infection] than being in the outside world. Is it okay to require vaccinations there?”

“No,” Keller said.

“Why not,” Roberts shot back. “It’s a special workplace problem.”

“Then OSHA could ban all people from going into the workplace,” Keller said.

“But it’s being more reasonable than that,” Roberts said. “And there is some pressing urgency to addressing this problem.”

Justice Breyer then weighed in again, asking Keller if he was still “really asking this court to issue a stay and stopping the vaccine mandate from taking effect.

“Hospitals are filled with people who are not vaccinated! Is it really in the public interest? How can it conceivably be in the public interest to stop this mandate when the surge is so great? To me it’s unbelievable,” Breyer said.

“The states can do it … but there isn’t enough weekly testing available right now … Businesses can do it …”

Justice Neil Gorsuch wanted to know why the Supreme Court should enter a stay immediately. In response Keller said that as soon as businesses announce their plans to comply with the OHSA order, “workers will quit and that displacement will ripple through the economy.”

Justice Sonia Sotomayor noted that a number of states are actively stopping employers from requiring their employees to be vaccinated or even to wear face masks. “Why shouldn’t there be a national rule to protect workers?” she asked.

“Congress would have to provide that explicitly,” Keller said.

“So what’s the difference between this and telling employers that where sparks are flying in the workplace your workers have to wear a mask to protect their eyes?” Sotomayor said. “Is the human being not like a machine if it’s spewing a virus? Are you questioning Congress’s power or desire that OSHA do this? It already has. In 1991 Congress told OSHA to issue regulations with respect to Hepatitis C and B.”

Picking up on the question of who should decide whether a vaccine mandate is needed, Justice Kagan said she is sure Keller is right when he argues there “are all kinds of public health and economic trade offs that have to be considered when imposing a policy like this.”

“These two things have to be balanced against one another,” she said. “So who decides? Should it be the agency full of expert policymakers who are completely politically accountable to the president? This is not the kind of policy in which there’s no political accountability. If people like this policy, they’ll go to the polls and vote that way; if they don’t like it, they’ll vote that way. 

“So this is a politically accountable policy, and it also has the virtue of expertise. So on the one hand, the agency with its political leadership can decide on the policy and on the other hand, the courts, which are not politically accountable and have no epidemiological expertise can decide,” Kagan said.

“Congress, the states … Governors, these are the ones who have the power … the emergency power … to decide this issue,” Keller said. “But when it comes to vaccines, the idea that OSHA, an agency of the federal government that is not even under the Department of Health and Human Services, and does not have the expertise over communicable diseases like the FDA or CDC … it just seems that that would be a very odd place for Congress to place such sweeping power over the American people.”

Among those following the oral arguments closely Friday morning was Wendy E. Parmet, Matthews University distinguished professor of Law and professor of Public Policy and Urban Affairs at Northeastern University.

In an email to The Well News, Parmet said she believes the justices should uphold the regulations as the statutes authorize them.

Asked whether the court’s post-Trump conservative tilt will come to the fore in the case and its outcome, Parmet said “it may,” though she felt the impact of the justices nominated by the former president — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — has already been felt in the earlier shadow docket cases taken up on an expedited basis this term.

“Indeed, the Court’s approach to public health has changed dramatically since Justice Barrett replaced Justice Ginsburg,” she said.

Parmet said at the end of the day, the views of Chief Justice John Roberts and Justices Barrett and Kavanagh are likely to be critical.

“They have not voted consistently in all COVID cases, and have shown some trepidation about striking down public health laws, though … Barrett and Kavanaugh have also been willing to strike some,” she said. “The outcome will likely depend upon how they rule. As for who will write the opinion, it depends on the outcome and the reasoning the court decides on. It could be the Chief Justice, but that’s not assured.

“One final point, it will be interesting to see if the justices respond similarly to both regulations, or see the CMS and OSHA cases as distinct,” Parmet said.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue.