US Supreme Court conservatives lean against Biden business vaccine policy

The court’s nine justices, who are all vaccinated, heard
more than 3-1/2 hours of arguments in two cases that test presidential powers
to combat a raging public health crisis that already has killed roughly 835,000

The conservative justices, who hold a 6-3 majority,
signalled sympathy toward arguments by the state of Ohio and a business group
that the federal workplace safety agency that issued the rule affecting
businesses with at least 100 workers – a policy requiring vaccines or weekly
COVID-19 tests for more than 80 million employees – overstepped its legal

The challengers have asked the court to block the policy
before the administration begins enforcement on Monday.

The court’s conservatives suggested that the 1970 law that
created the Occupational Safety and Health Administration (OSHA) did not
authorise this type of broad emergency action.

They seemed more open to a separate federal vaccine
requirement that states led by Missouri and Louisiana are asking the court to
block nationwide. It covers an estimated 10.3 million workers at about 76,000
healthcare facilities including hospitals and nursing homes that accept money
from the Medicare and Medicaid government health insurance programmes for
elderly, disabled and low-income Americans.

The conservative justices have shown scepticism toward
sweeping actions by federal agencies in past rulings. Decisions in both cases
are expected quickly.

The arguments underscored how divisive the issue of
vaccination has become in the United States, as in many nations.

The three liberal justices indicated that both policies were
justified during a pandemic showing no signs of abating, with an upswing in
COVID-19 cases driven by the fast-spreading omicron coronavirus variant.

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“This is a pandemic in which nearly a million people
have died,” liberal Justice Elena Kagan said, referring to the US death
toll during arguments over the OSHA mandate. “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. … And this is the policy that is most geared to stopping all this.”

Chief Justice John Roberts and fellow conservative Justices
Neil Gorsuch and Brett Kavanaugh indicated that the OSHA rule could be invalid
under a legal doctrine that says Congress must provide a clear statement on a
specific issue in order for a federal agency to issue broad regulations on it.

The conservative justices suggested Congress or individual
states would be better suited to act.


Roberts voiced doubt that the law passed by Congress
establishing OSHA empowered it to take such action.

“That was 50 years ago that you’re saying Congress
acted. I don’t think it had COVID in mind. That was almost closer to the
Spanish flu than it is to today’s problem,” Roberts said, referring to the
pandemic that occurred a century ago.

The White House has said the two temporary mandates will
save lives and strengthen the US economy by increasing the number of vaccinated
Americans by the millions.

“I would find it would be unbelievable to be in the
public interest to stop these vaccinations,” liberal Justice Stephen
Breyer said.

Some justices raised the possibility of the court issuing a
temporary stay blocking the OSHA rule while the court decides how to proceed.

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Roberts and Kavanaugh appeared more sympathetic to the Biden
administration’s arguments regarding the healthcare facilities mandate issued
by the Centres for Medicare & Medicaid Services (CMS), the agency
responsible for administering those programmes.

Kavanaugh noted that private healthcare providers did not
challenge the mandate that states are contesting. Conservative Justice Amy
Coney Barrett suggested the government could require vaccinations in certain
facilities but not others.

Gorsuch seemed sceptical of the policy as a whole,
questioning whether CMS has the authority to issue a vaccine regulation because
such action affects an employer’s staffing decisions, which Congress has said
the agency could not do as part of its Medicaid and Medicare funding

Gorsuch said that “you cannot use the money as a weapon
to control these things.”

All the government is doing, Kagan said, is “to say to
providers, you know what, basically, the one thing you can’t do is to kill your
patients, so you have to get vaccinated.”

Liberal Justice Sonia Sotomayor participated in the
arguments from her chambers. Ohio Solicitor General Benjamin Flowers and
Louisiana Solicitor General Liz Murrill participated remotely by telephone.
Flowers tested positive for COVID-19, his office said. Murrill’s office said
she acted in accordance with the court’s COVID-19 protocols, which require
lawyers to argue remotely if they receive a positive test.

The justices spent much of the pandemic working remotely
before returning to in-person arguments in October, although the building
remains closed to the public.

Biden’s administration asked the justices to lift lower
court orders blocking the CMS mandate in half the 50 states.

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The Cincinnati-based 6th US Circuit Court of Appeals on Dec
17 lifted an injunction issued by another court that had blocked the OSHA rule,
prompting challengers to ask the Supreme Court to intervene.

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