Another supreme battle at the U.S. Supreme Court Friday, January 7, 2022: In a special session, the justices are hearing expedited arguments in cases challenging two major Biden administration regulations aimed at increasing the number of vaccinated workers.
The cases are in a preliminary posture, but how the court rules will very likely signal how these issues are ultimately resolved.
On one side is the Biden administration, seeking to accelerate vaccinations with mandates for healthcare workers and mandate-or-test requirements for much of the private sector workforce, even as another surge in COVID-19 cases plays out across the country.
All of this will play out in front of a Supreme Court with all the justices vaccinated and boosted, sitting in a near-empty chamber, with an audience limited to reporters, counsel, and court staff, and in a building that is closed to the public to protect those who work there.
At the heart of Friday’s argument are two new federal regulations issued to deal with the pandemic. One, issued by the Occupational Safety and Health Administration applies to all companies that employ 100 or more workers. That’s nearly two-thirds of the private sector workforce. It requires that all workers be vaccinated or tested weekly and that the unvaccinated wear masks. The only exceptions are employees who work at home or outside. The rule is being challenged by a coalition of large and small business groups, 27 states, and individuals.
Among them is Brandon Trosclair, owner of 15 grocery stores in Louisiana.
“The problem here is the mandate itself,” he said in a video prepared by the conservative Liberty Justice Center, which represents him. “It puts a wedge between me and my staff, having to make them decide whether or not they want to get vaccinated, or I can potentially have to terminate them. The other option is multiple testing,” which costs money, in contrast to the vaccine, which is free.
The second regulation under scrutiny, issued by the Centers for Medicare and Medicaid Services, mandates vaccinations for all employees at hospitals, nursing homes, and other health care providers that receive federal funds. The only exceptions are for medical or religious reasons.
Those challenging the CMS rule contend that millions of healthcare workers will leave their jobs, rather than comply with the mandate. But the Biden administration points to studies showing that less than 1% of healthcare workers have left their jobs as the result of vaccine mandates. For instance, when the Houston Methodist Hospital system imposed a vaccine mandate, only 153 workers out of more than 61,000 resigned rather than comply.
Of the two rules before the Supreme Court, the mandate for healthcare providers is generally considered easier to defend because the courts have long held that when the federal government funds a program—like Medicare or Medicaid—it has the authority to put conditions on how the money is used, to ensure that it is used wisely, efficiently, and that it is not being used to expose patients to greater risks.
“We’re paying for people to get dialysis treatment, [and] we don’t want the consequence of our funding their dialysis treatment to be they get COVID,” says Case Western Reserve professor Jonathan Adler in summarizing the government’s position.
The OSHA regulation is different from the CMS rule because it was enacted, not under Congress’ spending power, but under Congress’ power to regulate interstate commerce, a target of many current court conservatives. But the OSHA rule was enacted under a very broad statute that allows the agency to issue emergency rules when it deems them “necessary” to protect workers from a “grave danger.” What’s more, OSHA has previously applied its rule-making to diseases, including HIV and hepatitis, and required employers to pay for the hepatitis-B vaccine for at-risk workers. That said, it has never enacted a vaccine-or-test rule like this one.
Among the challengers are more than half the states, almost all Republican-dominated, including a dozen that have made vaccination mandates illegal. They argue that the law exceeds what Congress intended in enacting the OSHA statute, and they go further, contending that if Congress did intend to give such broad rulemaking power to the agency, it would be unconstitutional. They argue that because of “the vast economic and political significance” of this rule, congress, would have to expressly authorize a vaccine-or-test mandate.
The Biden administration counters that under the Occupational Safety and Health statute, it was obligated to act. After all COVID-19 has already killed more than 800,000 people in the United States and sickened 50 million more, many with lasting effects.
“I think this is a case that’s a test of how truly radical or conservative this court is or is not,” says Harvard Law professor Richard Lazarus. “The question is whether the Supreme Court is going to try to totally upend the ability of our national government to safeguard the nation’s health and safety amidst a global pandemic sweeping the country.”
Professor Adler, however, thinks these cases that could be decided on narrow statutory grounds, based on what the statutes say and the agencies’ justifications for their actions. But he adds, “If we hear a lot of questions about the scope of the government’s constitutional power, that would suggest the justices view this case as a wedge into a broader questions about the federal administrative state.”