Supreme Court casts doubt on Biden’s vaccine rule for the workplace

WASHINGTON —  The Supreme Court’s conservative majority cast doubt Friday on President Biden’s plan to require that most American employees be vaccinated for COVID-19 or undergo weekly coronavirus testing.

The justices, having agreed to weigh in on the partisan divide over vaccines, heard from lawyers representing 27 Republican-led states, who argued the Democratic administration had overstepped its authority.

In their comments and questions, justices sounded split along the same lines, with the three Democratic appointees expressing strong support for Biden’s plan while the six Republican appointees voiced steady skepticism.

The conservatives are wary of new and far-reaching federal regulations, and they questioned the notion that Congress had or would authorize strict workplace rules for two-thirds of the nation’s workers.

In sharp contrast, the liberal justices said they were astonished the high court might block a requirement for most workers to be vaccinated against a virus that has killed more than 800,000 Americans.

Justice Elena Kagan noted that federal law authorized the Labor Department to adopt emergency rules to protect employees from a grave danger.

“Why isn’t this necessary to abate a grave risk?” she asked. “This is by far the greatest public health danger that this country has faced in the last century. We know that the best way to prevent spread is for people to get vaccinated.”

There “were three-quarters of a million new cases yesterday” and hospitals are filling up again, said Justice Stephen G. Breyer. He said it would be “unbelievable” for the court to say it would “be in the public interest to stop these vaccinations.”

Justice Sonia Sotomayor, who has been treated for diabetes since she was a child, was not in the courtroom but participated from her office by phone. She insisted that the Biden rule not be described as a “vaccine mandate,” since it gives employees a choice on whether to be vaccinated or undergo weekly testing.

None of the conservative justices spoke in defense of Biden’s rules. Instead, they characterized them as an overreach.

“This is something the federal government has never done before,” said Chief Justice John G. Roberts Jr. He said states have broad authority to set rules for public health and safety, but federal authority is limited. He noted that the court had turned down several challenges to state laws that required employees to be vaccinated.

“It’s not our role to decide public health questions, but it is our important job to decide who should decide those questions,” said Justice Neil M. Gorsuch. “Here our choice on the one hand is a federal agency and on the other hand the Congress of the United States and state governments.”

“Why isn’t this a major question that, therefore, belongs to the people’s representatives of the states and in the halls of Congress?” he asked. “Congress had a year to act on the question of vaccine mandates” and has not passed such a measure, he noted.

Solicitor Gen. Elizabeth Prelogar, representing the Biden administration, said in response: “We think that Congress has already acted here in passing [the law] to authorize OSHA [the Occupational Safety and Health Administration] to take this kind of specific action in response to an emergency situation. COVID-19 is a great danger. It’s a physically harmful agent, and the agency found that these measures are essential to protect workers.”

While most of the justices hinted they would block Biden’s rule affecting employers with more than 100 employees, they sounded closely split on the second rule — also before the court — affecting hospitals and nursing facilities. That rule, based on the Medicare Act, says all workers in facilities that serve elderly and sick patients must be vaccinated against COVID-19.

Roberts said that rule was closely tied to healthcare and could be justified in an emergency. But several of the more conservative justices suggested they might vote to block that rule as well.

It’s not clear how the court will proceed. The justices may issue a short-term administrative stay to put the rules on hold while they decide the two cases.

Biden proposed the two rules in the fall after it became clear that a significant percentage of employees were refusing to accept the vaccines that could protect them and slow the spread of the coronavirus. But Republican state attorneys general sued to block the measures, and have been joined by an array of business groups and conservative organizations.

In the first case heard Friday, the court will decide whether the administration can require employers with 100 or more workers to ensure that employees are either vaccinated or undergo weekly tests for the coronavirus. This rule is based on the Occupational Safety and Health Act of 1970, which gives the Labor Department the authority to issue an “emergency temporary standard” to protect “employees [who] are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

The administration says the virus is a new hazard that represents a grave danger.

The Republican lawyers argue that the virus is not a distinctly “occupational” danger. OSHA “may only regulate work-related dangers,” and the virus spreads everywhere, Ohio Atty. Gen. Dave Yost said in a brief filed this week along with the other 26 Republican states.

Lawyers for businesses also said companies would lose vital workers if a vaccination mandate were put into effect.

When Biden first proposed the rule, the White House said it could affect 84 million workers nationwide. Conservative judges quickly put the rule on hold, but the Ohio-based 6th Circuit Court of Appeals lifted those orders on Dec. 17 in a 2-1 decision, and said the rule may take effect.

That set the stage for the high court to take up the issue on a fast-track basis. The lead case is National Federation of Independent Business vs. Department of Labor, Occupational Safety and Health Administration.

In the second set of cases, the court will decide whether hospitals, nursing homes and other facilities that serve Medicare and Medicaid patients must require their employees to be vaccinated.

This requirement is based on Medicare and Medicaid rules that say facilities receiving federal funds must meet the standards that federal health officials determine are “necessary in the interest of the health and safety” of their elderly and sick patients.

Prelogar told the court this vaccine rule has the “nearly universal support” of leading medical and public health organizations. She also noted it includes exemptions for medical and religious reasons. The White House said this rule could affect 17 million workers.

But Republican state attorneys general sued and won rulings from judges appointed by former President Trump in Missouri, Louisiana and Texas, which put the rule on hold in 25 states where hospitals in rural areas feared they would lose employees if vaccinations were required.

The case before the court is Biden vs. Missouri.