Washington, D.C. Newsroom, Jan 7, 2022 / 16:34 pm

Conservative Supreme Court justices appeared skeptical during oral arguments Friday challenging two Biden administration COVID-19 mandates meant to prod millions of additional Americans to be vaccinated against the virus.

Hanging in the balance are the working lives of a large swath of the U.S. population. One of the government’s mandates — requiring businesses with 100 or more employees to require their workers to be vaccinated or undergo regular testing for COVID-19 — would apply to more than 84 million Americans.

Another 17 million people would be impacted by a vaccination requirement for health care workers at some 76,000 government-funded health care facilities, according to the Biden administration.

The new rules for businesses are set to go into effect Jan. 10, when unvaccinated employees would be required to wear masks on the job. The vaccinate-or-test provision would kick in on Feb. 9.

During more than 3½ hours of oral arguments in a pair of legal challenges on Jan. 7, the discussion focused not on the vaccines themselves, or the rationale or effectiveness of mandatory vaccinations, but on whether the federal government has the legal authority to issue the orders.

“It’s not that judges are supposed to decide some question of public health, it’s about regulating the rules of the system to ensure that the appropriate party does,” conservative Justice Neil Gorsuch said.

At issue are a pair of federal statutes the Biden administration has invoked to impose the mandates.

Where businesses are concerned, it points to the Occupational Safety and Health Act of 1970, which directs the Occupational Safety and Health Administration (OSHA) to issue emergency rules when it determines that a rule is “necessary” to protect employees from a “grave danger” from exposure to “physically harmful” “agents” or “new hazards.”

The health care worker mandate is based on the Social Security Act, and authorizes the secretary of Health and Human Services to “make and publish such rules and regulations” that “may be necessary to the efficient administration” of Medicare and Medicaid programs.

Representing the Biden administration’s position in the first case, U.S. Solicitor General Elizabeth B. Prelogar identified COVID-19 exposure as the “biggest threat to workers in OSHA’s history.”

“The court should reject the argument that the agency is powerless to address that grave danger,” she argued.

Attorney Scott A. Keller, representing the National Federation of Independent Business, criticized OSHA’s “economy-wide one-size-fits-all mandate.” He warned that it would cause “permanent worker displacement rippling through our national economy.”

“OSHA has never before mandated vaccines or widespread testing, much less across all industries,” he said. “A single federal agency tasked with occupational standards cannot commandeer businesses economy-wide into becoming de facto public health agencies.”

Joining Keller in challenging the business mandate was Ohio Solicitor General Benjamin M. Flowers also criticized OSHA’s one-size-fits-all approach.

The agency’s “sweeping” rule treats employers the same, he stressed, “regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.”

Skepticism from conservative justices

During the vaccine-or-test case, multiple justices cited the Major Questions Doctrine. The court clarified this judicial concept in 2014, in Utility Air Regulatory Group v. EPA, when it stated that it assumes “Congress to speak clearly if it wishes to assign an agency a decision of vast ‘economic and political significance.’”

Under the standard version of the doctrine, “statutory ambiguity on such questions requires a court to reject the agency’s assertion of administrative power and leave the policy question to Congress to resolve in subsequent legislation,” according to an analysis published by the C. Boyden Gray Center for the Study of the Administration State at George Mason University’s Antonin Scalia Law School.

“In the non-standard version of the doctrine,” the analysis states, “the statutory ambiguity on major questions empowers courts to resolve the policy dispute by upholding or denying the agency power as the court thinks best.”

“If there is an ambiguity, why isn’t this a major question that therefore belongs to the people’s representatives of the states and in the halls of Congress?” Gorsuch asked Prelogar. “Traditionally states have had the responsibility for overseeing vaccination mandates.”

Chief Justice John G. Roberts Jr., another conservative, noted that Congress has had more than 50 years since the passage of the 1970 occupational and safety act to specify that OSHA has the authority to mandate worker vaccinations, yet it never did so.

“This is something that the federal government has never done before, right? Mandated vaccine coverage?” Roberts asked, before also pointing out that “the police power to take such action is more commonly exercised by the states.”

Prelogar argued Congress implicitly provided OSHA to take such a measure if necessary in the language of the original statute. She cited the unprecedented nature of the COVID-19 pandemic in answer to why the agency has not mandated vaccinations before.

The court has already allowed state vaccination mandates for health care workers in Maine and New York to take effect, despite the absence of religious exemptions.

Impassioned comments from liberal justices

While conservative justices focused on the Major Questions Doctrine, liberal justices spoke impassionately at several points on the urgent need for government action to halt the spread of the virus.

“Why isn’t this necessary to abate a grave risk?” Justice Elena Kagan asked Keller, referring to wording in the OSHA statute. “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here, I’m just sort of stating facts. And this is the policy that is most geared to stopping all this.”

Liberal justices Stephen G. Breyer and Sonia Sotomayor also challenged Keller.

“Can you ask us, is that what you’re doing now, to say it’s in the public interest in this situation, to stop this vaccination rule with nearly million people — let me not exaggerate, nearly three-quarters of a million people — new cases every day? I mean, to me, I would find that unbelievable.”

“This is not a vaccine mandate,” Sotomayor said, citing the option to test regularly, pushing back against Keller’s claim that large numbers of workers will quit rather than get vaccinated. “There are costs and deaths and other things countervailing to the fact that there might be 1-3% of workers who leave.”

Vaccine requirements already have been blamed for worker shortages in some industries and parts of the country. Some of the largest U.S. hospital systems have dropped COVID-19 vaccine mandates for staff after a federal judge temporarily halted a Biden administration mandate that health care workers get the shots. This week, Rhode Island’s state-run hospital system and a private nursing home have used workers who have recently tested positive for COVID-19, due to the spike in vaccinations and low staffing.

At the same time, a growing number of other businesses, including Amtrak and General Electric, have suspended vaccine mandates for their employees, citing labor shortages. On Friday, Oregon joined New York, New Hampshire, Rhode Island and other states that have called up the National Guard to help staff hospitals and other health care facilities.

What happens next

At the conclusion of the oral arguments regarding the mandate for health care workers, Breyer weighed the harms.

“As you heard in the OSHA case at the last minute, on the one hand, if they have to start complying with this, they have to get plans, and the employers are hurt,” he said. “On the other hand, if they don’t start to get those plans ready, people might, well, it looks like a lot of people will get sick and take up hospital beds or worse.”

“Why do we not have to take those things into account, see how the government would balance them, see if that is reasonable, and be very wary at the least of interfering with rules that will, in fact, save people’s lives or hospital beds or from getting the disease,” he added.

Louisiana Solicitor General Elizabeth Murrill responded that the health-care worker mandate was different from the vaccine-or-test rule.

“They do not have a choice,” she said. “They have to be fired or cannot be hired, and so it handcuffs our providers in a way that is extraordinary and immediate.”

In the end, justices appeared to be split along ideological lines about whether the statutes are sufficient to support the Biden policies. The court could issue a decision in the two cases in a matter of days.

Catholic teaching

The mandates raise a host of difficult questions for faithful Catholic individuals, businesses, and health care providers.

On the one hand, Catholics are the most vaccinated religious group in the country, according to a recent Pew survey, which found that 82% of self-identified Catholics had received at least one dose of a COVID-19 vaccine. Pope Francis has called vaccination an “act of love,” and the Vatican’s Congregation for the Doctrine of the Faith (CDF) has said it is morally licit to accept the vaccines, which were developed using cell lines derived from fetuses aborted decades ago.

However, neither the pope nor the Vatican has addressed specific scientific and medical concerns that many still-unvaccinated Catholics have about possible serious side effects and the long-term safety of the vaccines. In addition, the CDF has emphasized that “vaccination is not, as a rule, a moral obligation and that, therefore, it must be voluntary.”