by Mark Sherman and Jessica Gresco
WASHINGTON (AP) – Fully vaccinated and mostly masked, a conservative majority of the Supreme Court on Friday cast doubt on the Biden administration’s authority to impose a vaccine-or-test requirement on the nation’s big employers. The court seemed more open to a separate vaccine mandate for most health care workers.
The arguments in the two cases come at a time of spiking in coronavirus cases due to Omicron’s version, and Friday’s decision by seven judges to wear masks for the first time reflects the new phase of the pandemic.
The eighth judge, Sonia Sotomayor, who had been suffering from diabetes since childhood, did not even appear in the courtroom, opting to remain in her office and attend the courtroom remotely. State officials said two attorneys representing Ohio and Louisiana argued by telephone after recent positive COVID-19 tests.
But the COVID circumstances didn’t outweigh the court’s views of six conservatives that the administration overstepped its authority in requiring a vaccine-or-test for businesses with at least 100 employees.
“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a law established half-a-century ago, the Occupational Safety and Health Act, provides such broad rights. Is.
Roberts and Justices Brett Kavanaugh and Amy Connie Barrett probably hold the key to the outcome in both cases, as they have been more receptive to state-level vaccine requirements than the other three conservative judges. Barrett and Kavanaugh also had tough questions for Solicitor General Elizabeth Preloger, the administration’s top court attorney.
The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said the authorities “have shown quite clearly that no other policy will prevent illness and death to the extent that it will.” And Justice Stephen Breuer said he found it “incredulous” that it could be in the “public interest” to block that rule. He said that on Thursday, about 750,000 new cases were reported in the country and hospitals are full.
Starting Monday, unvaccinated employees at large companies must wear masks at work unless a court halts enforcement. But the testing requirements and potential fines for employers don’t begin until February.
Legal challenges to the policies of Republican-led states and business groups are in their early stages, but results in the High Court will probably determine the fate of vaccine requirements affecting more than 80 million people.
Roberts, Kavanaugh and Barrett were less skeptical about the health care vaccine mandate. Kavanaugh said it was a “very unusual situation” that hospitals and health care organizations affected by the regulation were “not here complaining” about the rule, but rather supporting it. “What are we going to make of this?” He asked.
The second regulation is a mandate that would apply to nearly all health care workers in the country. This includes health care providers who receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.
Decisions from federal appeals courts in New Orleans and St. Louis have blocked mandates in nearly half the states. The administration has said that it is taking steps to implement it in the rest of the country.
“I think what is effectively at stake is whether these mandates are going to be implemented at all,” said Sean Marotta, a Washington attorney whose clients include the American Hospital Association. The trade group is not involved in Supreme Court cases.
Both vaccine rules would exacerbate labor shortages and be costly for businesses, lawyer Scott Keller argued on Friday on behalf of more than two dozen business groups. Without an immediate court order, “the workers will leave immediately,” Keller said.
Administration attorney Preloger told the judges that COVID-19 is “the deadliest pandemic in American history and a unique workplace threat.” OSHA has estimated that its emergency regulation will save 6,500 lives and prevent 250,000 hospitalizations in six months.
About 207 million Americans, 62.3% of the population, are fully vaccinated, and more than a third of them have received booster shots, including nine judges.
Andy Slavitt, a former adviser to the Biden administration on COVID-19, said the vaccine requirements are extremely effective for the 15% to 20% of Americans “who don’t like to get a shot, but will and won’t.” objection.”
The high court is considering the administration’s vaccine policies for the first time, though judges have turned down pleas to block a state-level mandate.
A conservative majority concerned about federal redundancies ended a federal moratorium on evictions imposed because of the pandemic.
Both vaccination cases came to court on emergency grounds, and the court took the unusual step of setting out the arguments rather than deciding on the summaries presented by the parties. Unlike other cases the court hears, the decision of the judges can come in weeks if not days.
Judges hear cases in court closed to the public because of the pandemic. Only judges, lawyers involved in the cases, court staff and journalists were allowed inside. The public could listen live, however, changes made earlier in the pandemic when justices heard cases via telephone for nearly 19 months.
The court is asking the arguing lawyers to give negative coronavirus test results and to participate remotely if they test positive. Ohio Solicitor General Benjamin Flowers, who was arguing against the employer rule, had tested positive for COVID-19 after Christmas, had mild symptoms and made a full recovery, but was required by the court. A test on Sunday detected the virus, a spokesman said. He was vaccinated and given a booster shot.
State Attorney General Jeff Landry said Louisiana Solicitor General Elizabeth Murrill, who was arguing against the health care workers’ rule, was arguing remotely “based on court protocol.” Landry was in court for Friday’s arguments.
It was the first time lawyers were arguing remotely since the court argued in person in October.
Justice Neil Gorsuch was the only justice who remained exposed during the entire argument, which lasted more than 3 and 1/2 hours. He sits between Barrett and Sotomayor. The court did not explain why Sotomayor did not take up the bench.
Correcting the story, one-third of those who are fully vaccinated have also received boosters.