Supreme Court conservatives appear skeptical of vaccine or testing mandate for companies

The Supreme Court heard challenges to the Biden administration’s efforts to increase the country’s vaccination rate against COVID-19 on Friday.

Evan Vucci / AP

Conservative U.S. Supreme Court justices on Friday appeared skeptical of President Joe Biden’s administration’s vaccine or testing mandate he imposed on big business amid the COVID-19 pandemic.

The first of two challenges to the Biden administration’s vaccination rules was a regulation issued by the Occupational Safety and Health Administration that applies to all businesses that employ 100 or more workers.

The Biden administration estimated the rule would affect tens of millions of workers.

The OSHA regulations were enacted under the authority of Congress to regulate interstate commerce, a target of many current court conservatives. The rule was enacted under a general law that allows the agency to issue emergency rules when it deems them “necessary” to protect workers from “serious danger”. That said, OSHA has never adopted a vaccine or test rule like this.

The Biden administration maintains that under the Occupational Safety and Health Act 1970 it was obligated to act. After all, COVID-19 has already killed more than 800,000 people in the United States and made 50 million more sick, many with lasting effects.

But the rule was challenged by a coalition of large and small business groups, 27 states and a few individuals. They argued that the law went beyond what Congress intended when it enacted the OSHA Act of 1970 – an argument with which Chief Justice John Roberts seemed to sympathize.

“It seems to me the government is trying to work across the waterfront and just do it agency by agency,” Roberts told Solicitor General Elizabeth Prelogar, the government’s lawyer. “I mean, it’s been called a ‘workaround,’ and I wonder what you’re trying to get around.”

Judge Neil Gorsuch, another Conservative, asked Prelogar: “Why is this not a major question which, under our Constitution, would normally be reserved for the representatives of the people in the States in the first place and in the halls of the? Congress second? ”

But court liberals like Justice Stephen Breyer seemed more receptive to the government’s argument.

“I would find it amazing to be in the public interest to stop these vaccinations,” Breyer said.

Difficult rules for health workers

The other challenge was with rules issued by the Centers for Medicare and Medicaid Services, which require vaccinations for all employees of hospitals, nursing homes and other health care providers who receive federal funds.

Or, as Justice Elena Kagan said, the government was just saying to providers, “You know what, the only thing you can’t do is kill your patients, so you have to get vaccinated.”

Those who challenge the CMS rule argue that millions of healthcare workers will quit their jobs rather than comply with the mandate. But the Biden administration cites studies showing that less than 1% of health workers have quit their jobs as a result of immunization mandates. For example, when the Houston Methodist Hospital system imposed a vaccination mandate, only 153 out of over 61,000 workers quit rather than comply.

Judge Brett Kavanaugh, another court conservative, noted the workers had not challenged the rule.

“People who are regulated aren’t complaining here about regulation,” he said. “This is a very unusual situation.”

Of the two rules submitted to the Supreme Court, the mandate of health care providers received a more sympathetic hearing from judges; courts have long held that when the federal government funds a program – like Medicare or Medicaid – it has the power to impose conditions on how the money is used, to ensure that the funds are used wisely and efficiently and are not used to put patients at increased risk.

The cases are in a preliminary position, but how the court rules will most likely indicate how these issues will ultimately be resolved.

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