Conservative justices seem skeptical of Biden vaccine mandates

Conservative members of the Supreme Court on Friday appeared skeptical of Biden administration policies that impose a COVID-19 vaccine-or-test requirement on broad swathes of the U.S. workforce.

During several hours of oral arguments, the court’s conservative majority posed sharp questions about whether a federal workplace law that Congress passed some five decades ago provides the legal authority for a vaccine-or-test policy affecting roughly 84 million workers at large employers.

The conservative justices also appeared wary, though slightly less so, of a separate coronavirus vaccine mandate that applies to the roughly 17 million health care workers at hospitals and other facilities that receive federal funding through the Medicare and Medicaid programs.

The tenor of Friday’s back-to-back arguments suggested a split along familiar ideological lines. Questions posed by the court’s six conservative justices reflected concerns about granular details like the efficacy of COVID-19 vaccines in preventing the spread to others, as well as broader structural issues like how public health authority fits within the country’s constitutional framework.

“It seems to me that the more and more mandates that pop up in different agencies, it’s fair — I wonder if it’s not fair for us to look at [this] as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the — why doesn’t this be the primary responsibility of the states?” Chief Justice John Roberts asked the solicitor general. 

The court’s three liberals appeared primarily concerned with the public health impact that might result from blocking the administration’s policies while challenges proceed in the lower courts.   

Justice Stephen Breyer, addressing an attorney for one set of challengers to the employer vaccine-or-test mandate, said he found their request to block the policy “unbelievable” in light of the soaring infection rates amid the spread of the omicron variant. 

“How can it conceivably be in the public interest,” he asked. “You have the hospitalization figures growing by factors of 10, 10 times what it was. You have hospitalization at the record, near the record.”

The first case heard Friday concerned a sweeping workplace regulation issued by the Occupational Safety and Health Administration (OSHA) that applies to businesses with 100 or more workers, an estimated two-thirds of the private sector. 

The measure drew swift legal challenges from interest groups, states and employers across the country who allege it is an unlawful exercise of government power and that it was issued without following proper procedures.

The mandate, which is scheduled to take effect next week, generally requires employers to adopt written policies requiring workers to be vaccinated against COVID-19 or wear masks and undergo weekly testing. The agency estimates the policy will save the lives of more than 6,500 workers and prevent some 250,000 hospitalizations over the course of six months.

Elizabeth Prelogar, the solicitor general, told the justices that the measure “lies in the heartland of OSHA’s regulatory authority” under the 1970 law that established it.

“Congress charged the agency with setting nationwide standards to protect the health and safety of employees throughout the nation, and Congress specifically appropriated money to OSHA to address COVID-19 in the workplace,” she said. 

But her argument faced stern pushback from the court’s conservatives on a number of grounds. 

One central question was whether the existing law’s delegation of authority to OSHA to issue emergency rules that are “necessary” to protect workers from “grave danger” justifies the vaccine-or-test mandate — or whether Congress would need to pass a new, more explicit measure for something so far-reaching. 

Several questions by the court’s conservative justices suggested their views aligned with the challengers’ argument that a regulation with such profound economic and political ramifications — a “major question,” in legal parlance — required a fresh authorization from Congress.

Scott Keller, who argued the case for business interest groups, said the OSHA measure exceeded the authority given by Congress.

“If Congress intended to give an occupational health agency the power to mandate vaccines across the country, it needed to do so clearly. States can do it. Businesses have done it and are able to do it,” he told the justices. “The question is not what is this country going to do about COVID. It’s who gets to decide that.”

Legal challenges to the OSHA mandate were consolidated in a Cincinnati-based federal appeals court, which reinstated the measure after it was blocked by a separate appeals court. 

The other Biden administration mandate that was argued in the Supreme Court Friday is currently blocked in roughly half the country after being challenged by separate groups of GOP-led states.

That policy, issued by the Department of Health and Human Services, mandates vaccines for health workers at hospitals across the country that receive federal funding. It provides for narrow exemptions on religious and medical grounds.

That policy appeared to receive a chilly reception from some of the court’s conservatives, though as a whole the conservative majority seemed somewhat less hostile compared to the day’s first argument. 

The government’s main contention in both cases followed a similar line of argument: that the administration’s bold response had been clearly authorized by Congress. 

Justice Amy Coney Barrett, one of the court’s conservatives, appeared to struggle with what ruling to issue given her apparent view that the Biden administration’s legal justification for applying the mandate in some federally funded health care facilities was stronger than in others. 

“This was an omnibus rule, and even though the secretary, in a chart, identified all these specific provisions, we don’t really have before us the structural and textual arguments directed at each of these provisions. So what if I think some do and some don’t?” she asked a lawyer for the government. “In an omnibus rule, what am I supposed to do?”

The challengers in both cases cautioned that allowing the mandates to take effect would lead to staff shortages. 

But one of the court’s liberal members, Justice Sonia Sotomayor, who participated by phone, suggested that warnings about the risk of worker attrition also cut in the opposite direction.

“We are now having deaths at an unprecedented amount,” she said. “Catching COVID keeps people out of the workplace for extraordinary periods of time.”

Updated at 5:13 p.m.