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Supreme Court Poised To Block Biden’s Workplace Vaccine Mandate

Gorsuch says administration is working to implement nationwide mandate

Supreme Court (Photo by DANIEL SLIM/AFP via Getty Images)
• January 7, 2022 4:40 pm

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The Supreme Court signaled Friday that it will block President Joe Biden’s vaccine mandate for big businesses.

In an emergency hearing, the Court’s conservatives seemed persuaded by trade groups and red states who say vaccine mandates should be crafted by Congress or the states, and not a federal agency. The Biden administration’s rule requires covered businesses to compel vaccinations for their employees or regularly test the unvaccinated.

A victory for the plaintiffs would require the White House to fundamentally rework its pandemic strategy. The employer mandate is central to Biden’s bid to increase vaccinations, but it comes amid mounting frustration with his administration’s approach to the pandemic. Pervasive testing shortages linger a year into his term, and top officials have admitted that the emergence of new variants caught them by surprise.

The Occupational Safety and Health Administration issued the vaccine rule in November. It directs businesses with more than 100 workers to mandate vaccines on their own or test unvaccinated workers on a weekly basis. Unvaccinated workers must wear masks at all times and pay out of pocket for testing. There are limited exceptions for employees who work remotely full time and those who work outside.

The Supreme Court's liberal members insisted courts have no business interfering with public health decisions during a pandemic.

Justice Sonia Sotomayor—who dialed into the argument from her chambers, rather than participate in-person—was the most outspoken member of the liberal trio and painted a dire picture of the pandemic. She claimed that the Omicron variant is as deadly as the preceding Delta variant and that at least 100,000 children are hospitalized "in serious condition" with COVID, some of whom are on ventilators.

According to the Centers for Disease Control and Prevention, fewer than 83,000 children have been admitted to hospitals with COVID since August 2020. Studies from the United Kingdom and South Africa found Omicron results in less severe symptoms than its predecessors, and there is no evidence that an uptick in positive cases in children requires hospitalization.

Sotomayor elsewhere faulted the plaintiffs for characterizing the policy as a "mandate," though its incentives and disincentives all skew strongly in favor of vaccination.

The plaintiffs are asking the Court to block OSHA’s rule before it takes effect on Monday. Justice Stephen Breyer said he found that request stunning.

"Can you ask us to say it's in the public interest in this situation to stop this vaccination rule with [nearly 750,000] new cases every day? I mean to me, I would find that unbelievable," Breyer said.

The plaintiffs argue Congress has never given OSHA the authority to mandate vaccines in the workplace. Given that the states are the primary public health regulators under the Constitution, they say OSHA could only enforce the mandate had Congress been unmistakably clear in assigning the power to mandate vaccinations to an agency.

They also say that OSHA’s authority is pegged specifically to dangers that arise in the workplace itself. OSHA’s enforcement power doesn’t reach hazards that present always and everywhere like COVID, they argued.

Chief Justice John Roberts and Justice Amy Coney Barrett picked up on that point and repeatedly asked advocates whether OSHA should have better tailored its rule. Roberts and Barrett suggested the agency might mandate vaccines in poorly ventilated settings or workplaces where transmission is especially prevalent, such as meat-packing plants.

Other government entities are mandating or encouraging vaccinations. The Centers for Medicare and Medicaid Services is requiring health care workers at facilities taking federal dollars to get vaccinated, and the military requires vaccination of all personnel. Justice Neil Gorsuch said those facts make it seem as though the government is stringing together a blunt, nationwide vaccine rule.

"Congress 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 work-around to its inability to get Congress to act."

Barrett pressed Solicitor General Elizabeth Prelogar, Biden’s top Supreme Court lawyer, as to when the government will stop invoking emergency power to justify pandemic restrictions with the pandemic lurching into its third year. Prelogar was evasive.

"To suggest based on concern about what might happen in the future that [OSHA’s] authority should be constrained or clipped now … would do a disservice," Prelogar replied.

Justice Samuel Alito suggested the Court could pause the rule for a few days while it turns around a quick decision. But business groups in particular are urging the Court to act over the weekend. They anticipate that hundreds of thousands of workers will quit their jobs rather than comply.

"OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines," said Scott Keller, who represented business groups during Friday’s hearing. He also noted that the government is already exploring an exemption for Amtrak and the U.S. Postal Service in light of the labor shortage crisis.

The case is No. 21A244 National Federation of Independent Business v. Department of Labor.