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Supreme Court appears poised to block Biden’s vaccine and testing rules for businesses

By Ariane de Vogue, CNN Supreme Court Reporter

The Supreme Court’s conservative majority on Friday appeared ready to reject one of President Joe Biden’s most aggressive attempts so far to combat the spread of Covid-19 — a vaccine or testing requirement aimed at large businesses.

But in a separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers.

The court heard arguments for almost four hours as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated.

The three liberal justices on the court expressed clear approval for the administration’s rules in both areas.

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For the first time, seven of the justices appeared in the majestic chamber wearing masks, though Justice Neil Gorsuch chose not to. Before arguments began, the court announced that Justice Sonia Sotomayor, who suffers from diabetes, would hear arguments remotely from her chambers even though a spokeswoman said she was not ill. Sotomayor sits next to Gorsuch on the bench under normal circumstances.

Two of the lawyers representing states challenging the rules were not present due to Covid protocols. Ohio Solicitor General Benjamin Flowers, who is vaccinated, contracted Covid after Christmas, and has fully recovered, the state’s office said. However, the PCR test required to enter the courtroom detected the virus.

Skeptical of federal rules

Although the justices have been receptive to past attempts by states to mandate vaccines, the new disputes center on federal requirements that raise different legal questions.

Two sets of rules, issued in November, were the subject of Friday’s cases. The first would impact some 80 million individuals and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. Conservative Justices Samuel Alito, Clarence Thomas and Amy Coney Barrett, suggested that the Biden administration’s rule, issued under an agency’s emergency powers, was too broad.

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Barrett asked whether a “more targeted” regulation aimed at industries with a higher risk of transmission, would be more likely to pass legal muster.

Along the same lines, Thomas suggested that younger, unvaccinated workers might have fewer health risks and should not be subject to the same rules as older workers. He also said that states could be better suited than the federal government to require vaccines or testing under their police powers.

Two of President Donald Trump’s nominees, Gorsuch and Brett Kavanaugh, questioned whether a federal agency could issue a regulation with such vast economic and political significance without the clear authorization of Congress. Chief Justice John Roberts seemed to agree on that point by wondering if the government had responded on an “agency by agency” basis, in order to get around the fact that Congress and some states had failed to act.

The second case concerned a regulation that requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations.

In that dispute, more justices seemed receptive to the Biden administration’s authority.

They also questioned if Republican-led states behind the challenge had the legal right to be in court because they only operate some of the facilities. Neither the facilities nor workers challenged the requirement, something Kavanaugh noted during oral arguments.

During both arguments, the liberal justices expressed repeated support for the Biden administration’s authority to issue the requirements aimed at a virus that has already killed more than 800,000 Americans, closed businesses and kept children out of classrooms. They were deeply skeptical of arguments that the mandates could lead to massive staff shortages and billions of dollars in compliance costs.

“This is a pandemic in which nearly a 10 million people have died,” an animated Justice Elena Kagan said at one point. “It is by far the greatest public health danger that this country has faced in the last century,” where “more and more people are dying every day.”

“It’s an extraordinary use of emergency power occurring in an extraordinary circumstance, a circumstance that this country has never faced before,” she added.

Justice Stephen Breyer spoke about new Covid-19 cases, arguing that the hospitals are “full.”

“I would find it unbelievable that it could be in the public interest to suddenly stop these vaccinations,” he said.

And Sotomayor stressed that “for many with preexisting conditions or immunological problems, there are severe consequences, even when vaccinated.”

Already the justices have struck down a separate attempt by the President to mitigate the impact of the virus. Last August, a 6-3 court blocked the government’s eviction moratorium, holding that the agency at issue in that case, the US Centers for Disease Control and Prevention, exceeded its authority.

“It is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant,” the court said at the time. But in an unsigned opinion the majority added, “our system does not permit agencies to act unlawfully even in pursuit of desirable ends.” Breyer, Kagan and Sotomayor dissented.

Large employers

The rule from the Occupational Safety and Health Administration — an agency that falls under the US Labor Department and is charged with assuring a safe workplace — requires employers with 100 or more employees to ensure that their employees are fully vaccinated or undergo regular testing and wear a face covering at work. There are exceptions for those with religious objections.

The agency said that it had the authority to act under an emergency temporary standard meant to protect employees if they are exposed to a “grave danger.”

The Biden administration defends the regulation and argues that the nation is facing a pandemic “that is sickening and killing thousands of workers around the country” and that any delay in implementing the requirement to get a vaccine or submit to regular testing “will result in unnecessary illness, hospitalizations and death.”

Solicitor General Elizabeth Prelogar told the justices in court papers that if the court were to rule in favor of the challengers it would leave OSHA “powerless” to respond to the “grave workplace dangers posed by existing viruses and other infectious diseases, as well as future pandemics.”

At the very least, she argued, if the court says that the employers can’t require the employees to get the vaccine, it should leave in place an alternate requirement for masking and frequent testing.

But a lawyer for the National Federation of Independent Business, representing a coalition of business groups, told the court that OSHA did not have the authority to put in place a vaccine and testing regime that would cover two-thirds of all private-sector workers. The lawyer, Scott A. Keller, stressed that the OSHA requirement would impose substantial compliance costs on businesses that will be faced with incurring the cost of testing for millions of employees who refuse to vaccinate.

Keller argues that the rule will trigger severe staffing shortages when workers who object to the requirements quit. “The resulting labor upheaval will devastate already fragile supply chains and labor markets at the peak holiday season,” he wrote in court papers.

Keller told the justices that if the court were to rule in favor of the government in the dispute it would “drastically” expand the agency’s authority over industries that cover a significant portion of the economy. “Congress did not give OSHA power to impose emergency mandates and monitoring 84 million employees for a known, omnipresent danger that presents no unique hazard to the identified workplaces,” he said.

A divided panel of judges on the 6th US Circuit Court of Appeals ruled in favor of the administration, holding that as Covid -19 has “continued to spread, mutate, kill, and block the safe return of American workers to their jobs” OSHA “can and must be able to respond to dangers as they evolve.”

But a well-respected conservative judge on the same court dissented during an earlier phase of the case. Judge Jeffrey Sutton conceded the “utility of vaccines,” saying, “It is the rare federal judge who has not gotten the message.” He maintained, however, that no matter the policy benefits of a well-intended regulation, “a court may not enforce it if the agency’s reach exceeds a statute’s grasp.”

OSHA has said it will not issue citations for noncompliance to employers before January 10.

Over 10 million health care workers

The second rule concerns a vaccine policy rolled out in November by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services, which sought to require the Covid-19 vaccine for certain health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid programs.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by December 6 and the mandate allows for some religious and medical exemptions.

Principal Deputy Solicitor General Brian H. Fletcher is asking the Supreme Court to reverse two lower court opinions that blocked the mandate in 24 states, arguing that the “unprecedented pandemic” has killed 800,000 Americans and that “the Secretary of Health and Human Services exercised his express statutory authority to protect the health and safety of Medicare and Medicaid patients.”

Fletcher said the requirement will “save hundreds or even thousands of lives each month” and pointed out that patients who take part in the Medicare and Medicaid programs are of advanced age or suffer from disability and face a higher risk of developing severe complications if infected with Covid-19.

“It is difficult to imagine a more paradigmatic health and safety condition than a requirement that workers at hospitals, nursing homes and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” Fletcher said. He also stressed that even though CMS may not have directly required vaccinations in the past, workers at Medicare and Medicaid facilities have long been subject to employer or state vaccination requirements for the flu or hepatitis B virus.

Lawyers for two different sets of states counter that CMS acted outside the scope of its authority when issuing the mandate because Congress never specifically authorized the agency to issue such a broad rule. They also charge the agency with bypassing normal procedures which would have allowed stake holders to weigh in on the mandate.

Jesus A. Osete, Missouri’s deputy attorney general, called the mandate “sweeping an unprecedented” and he said it would create a crisis in health care facilities in rural America because it would force “millions of workers to choose between losing their jobs or complying with an unlawful federal mandate.”

He called the health care workers who have fought the pandemic “heroes” and said some of them could soon become unemployed and he stressed that the federal government does not have the authority “to force health care workers to submit to a permanent medical procedure.”

Separately, Elizabeth Murrill, Louisiana’s solicitor general, representing a different set of states, said that the mandate is also unconstitutional. She argued that under the Spending Clause of the Constitution Congress’ power to legislate “rests on whether the State voluntarily and knowingly accepts the terms” of a contract.

In the case at hand, she said, the facilities that accept the federal funds had no advance notice of the mandate. She also argued that Congress can’t simply delegate the authority to a federal agency to require vaccines for over 10 million health care workers without a clear statement of intent.

“There is no question that mandating a vaccine to 10.3 million healthcare workers is something that should be done by Congress, not a government agency,” a judge on the United States District Court for the Western District of Louisiana held in ruling against the Biden administration in November.

The justices agreed to hear the case on a rushed basis with a truncated briefing schedule and it is unclear how quickly they will act.

This story has been updated with details from oral arguments.

CORRECTION: An earlier version of this story misstated the justices’ previous positions on efforts by states to mandate vaccines.

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