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Supreme Court conservatives skeptical of Biden vaccine and mask requirements

Several conservative justices suggested they didn't think the government had the authority to impose such sweeping requirements covering millions of employees.

The Supreme Court's conservative majority signaled Friday that it is unlikely to allow the Biden administration to enforce a sweeping rule intended to help stop the spread of Covid in the nation's workplaces.

The court heard more than three hours of argument, including fierce opposition from the court’s liberal flank, in an unusual session to take up emergency appeals involving federal vaccine or testing requirements for large employers and the vaccine mandate for some health care workers — rules that would affect as many as 100 million workers.

Several of the court's conservatives suggested they did not believe federal law gave the government the authority to impose such a broad requirement covering millions of private employees.

A Los Angeles County Department of Public Health worker administers a dose of a Covid-19 vaccine at a pop-up clinic at Los Angeles International Airport on Dec. 22, 2021.Bing Guan / Reuters file

One issue is whether the Occupational Safety and Health Administration has the legal power to require that businesses with 100 or more employees ensure they are vaccinated or that unvaccinated workers wear masks and show negative Covid test results at least once a week.

"Why doesn't Congress have a say in this?" asked Chief Justice John Roberts. "Why isn't this the primary responsibility of the states? It seems like the government is trying to work across the waterfront and going agency by agency."

Justices Neil Gorsuch and Brett Kavanaugh suggested they thought Congress did not give OSHA the authority to impose such a broad requirement, and Clarence Thomas said the government needed to show why such a broad authority was invoked.

"You need to show a lot more than just to say a lot of bad things could happen," he said.

During the lively courtroom arguments, the court's more liberal justices said the regulations easily meet the requirements for an emergency response to the pandemic.

"This is by far the greatest public health danger we've faced in more than a century," said Elena Kagan. "Nothing else will be as effective at incentivizing people to get vaccinated."

Addressing a lawyer opposed to the measures, Justice Stephen Breyer asked, "How can you say there's no public interest to stopping the vaccination with all these new cases? I would find that unbelievable."

Elizabeth Prelogar, the Justice Department's solicitor general, said Congress gave OSHA all the authority it needs.

"This is the deadliest pandemic in U.S. history, and workers are dying because of their exposure to the virus at work," she said.

OSHA estimated that the requirement will save over 6,500 lives and prevent 250,000 hospitalizations in the next six months.

But states and businesses opposed to the rule sued, arguing that Congress never gave OSHA the authority to issue such a sweeping nationwide requirement.

"OSHA has never had such an all-industry mandate," said Scott Keller, representing the challengers, adding that "it will cause labor shortages throughout the economy" when workers who refuse to get the vaccines simply walk off the job.

He asked the court to issue an immediate order to block enforcement of the requirements. Justice Samuel Alito said the court should at least put a hold on the regulations for a few days while it considers how to rule.

It was less clear how the court might rule on a separate federal rule requiring vaccinations for health care workers who treat Medicare and Medicaid patients, given that it is a more targeted mandate. Two federal appeals courts blocked enforcement in 24 states, but it's in effect in the remaining 26.

States opposed to the requirement said the federal law gives the secretary of Health and Human Services authority to impose general health and safety rules for facilities like hospitals, but that doesn't include the power to require employees to take a vaccine. The agency that administers Medicare and Medicaid has never before required vaccinations, they said.

Justice Kagan questioned that narrow view of the law, asking, "Doesn't HHS have authority to say, the one thing you can't do is kill your patients? You can't be the carrier of disease?"

In recent months, the court has declined to block vaccination mandates for students at Indiana University, teachers in New York, and health care workers in Maine, Massachusetts and New York. Those were rules imposed by states, which have broader authorities known as police powers to protect public health.

But last term, the court said federal law did not permit the Centers for Disease Control and Prevention to impose a nationwide ban on evictions. The cases heard Friday involved the specific authorities of OSHA and HHS.

The third Biden vaccine requirement, for federal contractors, is on hold nationwide, blocked by order of a federal judge in Georgia.