The Biden Administration at the Supreme Court on Friday defended the president’s Covid-19 vaccine mandate on employees of large businesses.
The order that goes into effect Monday pertains to 80 million or more American workers, who must submit their vaccination papers to their employers, per regulations from the Occupational Safety and Health Administration.
The hearing on the Biden regulation was made in a nearly empty court chamber, closed to the public. Only court workers, justices, counsel for each side, and reporters were allowed in the building. The request for the emergency stay of the Biden order was broadcast on the internet.
The hearing indicated that the majority of the Supreme Court is leery of the administration’s authority to require millions of Americans to be vaccinated or tested for Covid as a condition of employment. The cases are linked here and here.
Note: A second case heard today involves the Biden Centers for Medicare and Medicaid Services’ mandate for health care workers on the same topic of vaccination mandates. Those cases are linked here and here and effect 10 million health care workers.
Notes from the first hearing on the OSHA mandate:
Solicitor General the United States Elizabeth Prelogar, on behalf of the Biden Administration, argued that OSHA’s Covid vaccine mandate is “commonplace” and is the most effective way to control the spread of a highly dangerous virus.
Prelogar was confirmed in the Senate in October as the federal government’s top advocate at the Supreme Court. She has argued nine prior Supreme Court cases.
“We are asking for an extraordinary stay, we understand the gravity of the situation,” said NFIB attorney Scott Keller. Keller has argued 11 prior cases before the Supreme Court and 12 cases before the Texas Supreme Court.
Justices Stephen Breyer and Sonia Sotomayor assisted Solicitor General Prelogar in arguing for mandates, as if they were co-counsel for the Biden Administration.
Justice Breyer said all current cases could be immediately stopped with mandates.
Breyer cited the explosion in Covid cases and asked the NFIB’s lawyer how it could “conceivably” be in the public interest to block OSHA’s vax-or-test rule right now.
“Are you really asking us to issue a stay?” “If we delay it a day… then 750,000 more people will have Covid.”… “What are the consequences of a stay… won’t it really make a difference?” … “I would find that unbelievable” that the Supreme Court would stop the mandate from going into effect, he said.
Sotomayor, who appeared remotely in the hearing (but not because she is sick with Covid,) did not seem to know the difference between state and federal power. She called OSHA’s authority a “police power” over workers, a statement that has strong fascistic implications.
Sotomayor said Omicron is as deadly as the Delta variant and that there are over 100,000 children in serious condition with Covid, “many on ventilators.” Children are not regulated by OSHA, which prevents them from being in the workforce. Sotomayor seemed to not understand that this case is about workers.
Sotomayor later asked, “Why is a human spewing a virus not like a machine spewing sparks?”
Justice Clarence Thomas asked “is the vaccine the only way to treat Covid?” The answer from the Biden Administration was yes, it is the most effective way.
Thomas reminded the court that OSHA regulates employers not employees. He noted that “…the vaccines could have significant health consequences.”
Justice Samuel Alito asked whether the Biden Administration objected to the court taking a few days to issue an administrative stay, to consider the issue before people start losing their jobs. Solicitor General Prelogar, on behalf of the federal government, skirted the question in her answer. Alito responded: “It’s a simple question. You can say no.”
Justice Neil Gorsuch said Congress has had a year to act on the vaccine mandates, but yet Congress hasn’t acted. So now the fed government is doing an agency workaround. Why, under the Consitution, should the people’s representatives not resolve the vaccine mandate issue?
Chief Justice John Roberts hinted at a pro-vaccine mandate stance: “Workers sitting next to each other for a significant length of time working together in close contact. That presents a different kind of risk,” he said.
But at another time in the hearing, Justice Roberts noted, “Fifty years ago, Congress enacted a general law. I don’t think it had Covid in mind at that time. The fed government has never mandated vaccines on private employers or employees before.”
Sotomayor, who has referred to herself in the past as a “wise Latina,” kept repeating, “This is not a mandate.”
When does the emergency end?” asked Justice Amy Coney Barrett. When does OSHA resort to its regular authority and not in this “quick way” that precludes the public’s ability to weigh in on matters that impact their bodies? she asked. Do we have any reason to believe that Covid will be any less dangerous two years from now?
Biden’s attorney Elizabeth Prelogar, the 2004 Miss Idaho, said this is a true emergency, an unprecedented pandemic that puts the country in grave danger.
Justice Gorsuch said there are other deadly illnesses like flu and asked why OSHA hasn’t mandated a vaccine before.
Prelogar said Covid-19 is a unique pandemic and much more dangerous.
Gorsuch cited polio as a pandemic with grave consequences, but the federal government didn’t require the vaccine of workers.
NFIB Attorney Scott Keller said, “We need a stay now before enforcement starts. Our members have to submit their plans on Monday on how to comply. You need two vaccines to comply.”
There is a shortage of tests, and the price for tests is going up, he noted. Worker will quit right away if no stay is granted before Monday. He argued that when the case if finally heard before the Supreme Court at a later date, NFIB is likely to win.
Keller also said it is unreasonable to assume Congress gave OSHA unprecedented power over American industry and that OSHA has never before been allowed to mandate vaccines. He said there was no clear mandate in the legislation that created OSHA that gave it power over forced medications.
“We need stay now, before enforcement starts. Employers are required to submit plans on Monday. Employees would have to get vaccines right away. That’s why workers will quit right away,” he said.
“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends. We would respectfully request a stay before Monday,” Keller said.