- The Washington Times - Friday, January 7, 2022

With a fervent eye on omicron and the surging number of coronavirus cases and hospitalizations, the Supreme Court struggled Friday with whether the Biden administration can try to slow the virus through an unprecedented set of workplace vaccine mandates.

The court’s GOP-appointed majority seemed skeptical of the breadth of the mandate from the Occupational Safety and Health Administration, covering every company with more than 100 employees, requiring they demand vaccine compliance or compel mask-wearing and weekly testing.

“This is something that the federal government has never done before, right — mandated vaccine coverage?” Chief Justice John G. Roberts Jr. challenged the government’s lawyers.

Justices are racing toward a Monday deadline for the initial implementation of the mandate and must decide whether to issue a delay to let the case develop in the courts.

“This is a pandemic in which nearly a million people have died. It is by far the greatest health danger this country has faced in the last century,” said Justice Elena Kagan, an Obama appointee. “This is the policy that is most geared to stopping all of this. There’s nothing else that will perform that function better than incentivizing people, strongly, to vaccinate themselves. So whatever necessary means, whatever grave means, why isn’t this necessary and grave?”

Businesses and GOP-led states opposing the mandate said they don’t question the value of vaccines, but said the justices aren’t sorting out medical policy, but rather who has the power to carry it out.

SEE ALSO: In omicron outbreak, U.S. governors lose appetite for mandates

“States can do it, businesses have done it, and are able to do it. The question is not what this country is going to do about COVID, it’s who gets to decide that,” said Scott Keller, a lawyer for the National Federation of Independent Business.

The justices have been grappling with COVID-related cases since virtually the first days of the pandemic, as states rushed to impose shutdown orders, though many of those dealt with weighty but narrow matters such as whether state and local officials could shut down in-person religious services.

Friday’s argument, by contrast, rested on statute and whether Congress gave — or even could give — the executive branch this sort of broad power.

Chief Justice Roberts, an appointee of President George W. Bush, wondered whether OSHA’s powers were intended to be as broad as Mr. Biden is claiming. He said there may be some industries with assembly lines, where people are packed tightly together, where OSHA would have a strong claim to action, but other industries where that’s not the case.

He said the Biden administration was trying to cobble together a network of mandates — on federal workers, federal contractors, medical workers and large employers — when what it really wanted was a universal policy that should come from Congress or states.

“It seems to me the government is trying to work across the waterfront and it’s just going agency by agency,” the chief justice said.

Mandate opponents said the government is trying to tackle a universal risk of COVID, which can be contracted in any personal interaction, by declaring it a specific workplace issue.

Benjamin Flowers, solicitor general of Ohio, compared it to terrorism.

“The fact that you face that risk when you go to work doesn’t make it a workplace risk,” he said.

But Justice Sonia Sotomayor, an Obama appointee, compared the rules to OSHA mandates that businesses provide protection for people who work with machinery that produces sparks. She said there’s no question OSHA has that ability.

“Why is the human being not like a machine if it’s spewing a virus?” she demanded.

The OSHA mandate covers businesses that employ about two-thirds of America’s private sector workforce.

The mandate allows an alternate path for those who refuse vaccines: mandatory weekly testing and constant masking. OSHA figures about 40% of businesses under the mandate would adopt the masking and testing avenue.

Business groups say that will send their costs soaring since they must provide the tests, and they pointed to evidence employees will still quit because of the mask mandate alone.

The Biden administration calls those fears speculative and pointed to the experience of some large employers who have seen strong compliance with their own imposed mandates.

The justices were also grappling Friday with another mandate issued by the Centers for Medicare and Medicaid Services covering medical workers who get federal funding. That covers about 10 million employees.

That mandate seemed to be less controversial for some of the GOP-appointed justices. Chief Justice Roberts said he could see a closer nexus between medical professionals and the spread of the disease.

Both the CMS and OSHA policies were issued in early November and have sped through the courts with stunning speed, with judges reaching differing conclusions on their legality.

The two cases come to the high court in different postures.

The CMS rule has been blocked in much of the country by lower courts, so the Biden administration is seeking to lift those injunctions. The OSHA rule, meanwhile, has not been blocked, and it’s the opponents who are seeking a stay.

Solicitor General Elizabeth Prelogar said the Biden administration could understand if the court wants to issue a “brief” stay in order to further consider the arguments, but warned there are consequences.

“There are lives being lost every day,” she said.

Mr. Biden had said he didn’t believe in vaccine mandates, but he reversed himself in the fall as the delta variant of the coronavirus was racing through the country.

During Friday’s argument Justice Clarence Thomas, an appointee of President George H.W. Bush, wondered about the value of universal vaccines, pointing to data that suggested unvaccinated younger workers are still safer than vaccinated older people if they contract the coronavirus.

Justice Sotomayor said that wasn’t a relevant comparison.

“The point is, it’s not the risk to the individual that’s at question, it’s that risk plus the risk to others,” she said. “Unvaccinated people affect other unvaccinated people.”

Justice Samuel A. Alito Jr. also delved into vaccine effectiveness, though he repeatedly insisted he wasn’t questioning the vaccines’ effectiveness.

He did argue, though, that there are some risks associated with all vaccines, including those for COVID-19, and some people will face adverse reactions. He said people who have chosen to remain unvaccinated have evaluated the risks and benefits for themselves.

“I don’t want to be misunderstood in making this point, because I’m not saying the vaccines are unsafe,” the justice said, adding, “I’m sure I will be misunderstood.”

Ms. Prelogar admitted there was “very minimal risk with respect to some individuals,” but said the benefits far outweigh it.

“I’m not making that point, I’m not making that point, I’m not making that point,” Justice Alito said.

He said his point was that he couldn’t think of an OSHA regulation that had imposed some risk on employees even as it argued for an overall benefit.

Justice Kagan jumped in to say regulators make those kinds of risk-benefit calculations all the time.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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