The U.S. Supreme Court cast doubt on the linchpin of President
In a special argument session Friday, the court’s conservative justices voiced skepticism about the rule, which business groups and Republican-led states say exceeds the workplace-safety agency’s authority.
The pandemic “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone,” Chief Justice
The initiative represents the heart of Biden’s plan to increase the country’s vaccination rate as the omicron variant
The questioning was more mixed on a separate administration rule that would require shots for workers in nursing homes and other facilities that receive Medicare and Medicaid payments from the government. Roberts suggested he saw a “close connection” between the vaccine and the goals of those health-care programs.
The OSHA rule requires employers with 100 or more workers to make them get vaccinated or be tested regularly, potentially at their own expense. The rule is set to kick in Monday, though OSHA has said it won’t issue citations until at least Feb. 9 to employers who are trying in good faith to comply with the testing requirements. The court could rule in a matter of days.
The showdown marks the first time in decades the court has heard arguments on emergency requests for a stay without ordering the full briefing that occurs when cases are heard on the merits.
Underscoring the reach of the virus, two lawyers opposing the Biden rules, Ohio Solicitor General
A spokeswoman for Flowers said he tested positive after Christmas and the virus was detected when he was tested again Thursday. A spokesman for Murrill said she was arguing remotely “in accordance with the COVID protocols of the court.” The court requires arguing lawyers to get a PCR test the day before a session and to participate by telephone in the event of a positive test.
In a change from previous in-person arguments, seven of the other eight justices -- all but
A Supreme Court spokesman said this week that all nine justices have received booster shots.
The court has been
“Traditionally, states have had the responsibility for overseeing vaccination mandates,” said Gorsuch, citing his own rejection on Dec. 21 to a challenge to New Mexico’s shot requirement for health-care workers.
“Congress’s had a year to act on the question of vaccine mandates already,” Gorsuch said. “As the chief justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act.”
The court’s liberals suggested they were exasperated at the suggestion that federal agencies couldn’t broadly respond to a pandemic that has killed more than 800,000 people in the country.
“It is by far the greatest public health danger that this country has faced in the last century,” Justice
The administration says its vaccine rules are key steps toward getting the pandemic under control.
“Number one, legal experts say that we clearly have legal authority to do it,” Labor Secretary
OSHA issued the rule as a so-called emergency temporary standard, or ETS. Under federal law, the agency can put an ETS in place immediately for six months but must meet a more demanding legal test by showing it is “necessary” to protect employees from “grave danger.”
Twenty-six business groups led by the National Federation of Independent Business contend that OSHA didn’t meet that test and that Congress didn’t provide clear authorization for such a sweeping mandate.
Ohio is leading a separate group of 27 states challenging the OSHA rule. They say the rule interferes with states’ prerogative to develop their own vaccine policies.
OSHA estimated before the omicron variant emerged that the standard would save more than 6,500 worker lives over six months.
‘Kill Your Patients’
The health-care rule, issued by the Centers for Medicare & Medicaid Services, is being challenged by separate groups of states led by Missouri and Louisiana. The rule requires facilities to provide medical and religious exemptions.
As with the OSHA rule, the court’s liberals voiced support for the health-care requirement.
“All the secretary is doing here is to say to providers, you know what, basically, the one thing you can’t do is to kill your patients,” Kagan said. “So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients. That seems like a pretty basic infection prevention measure.”
The OSHA cases are National Federation of Independent Business v. Department of Labor, 21A244, and Ohio v. Department of Labor, 21A247. The CMS cases are Biden v. Missouri,
(Updates to reflect conclusion of second argument starting in fifth and sixth paragraphs.)
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