Hot takes: Notes on Biden vaccine mandate emergency Supreme Court hearing. Will court issue a stay by Monday deadline?


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.”

Watch the oral arguments here at C-SPAN.

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.


  1. People will not quit right away! They will not comply and get fired and therefore have ammunition for recourse and compensation against this forced mandate and allowing for expedited unemployment benefits to be administered. One thing I hope people understand is that the vaccine does not stop Covid! You can still get it and spread it!

      • 1) The clot shots are NOT vaccines, Derek, so please stop repeating that bit of disinformation. They are gene therapies of limited effectiveness and of very limited duration.
        2) You seem to be applauding the repugnant action you are describing here.

          • Any injection that offers very little sterilizing immunity, and that for only a very limited period of a few months (at best), AND has a risk of side effects that for most people exceeds the risk from the disease being putatively vaccinated against, is effectively no vaccine at all.

          • Any injection that does not offer sterilizing immunity, but only ameliorates symptoms (and even that for only a very limited period of a few months at best), AND has a risk of side effects that for most people exceeds the risk from the disease being putatively vaccinated against, is effectively no vaccine at all.

      • I worked for Ak Public Assistance for 16 years. You can get unemployment quicker if you are fired. If you quit it takes 6 weeks before you can apply. You can also receive extra public assistance based on your last 5 years of employment. Vaccination doesn’t stop these benefits!

    • If they quit or get fired for not taking the jab they are not eligible for unemployment. That is part of Biden’s plan to force compliance.
      This has been my concern as well because I do work in the healthcare industry.

  2. I am appalled at the constitutional ignorance and arrogance of power of Sotomayor and Breyer. How can they NOT KNOW that the vax neither prevents the disease nor its transmission? The only thing “wise” about this bravo sierra is that it smells of leftist tyranny.

    • And the fact that Sotomayor is spewing blatant lies about how there are 100,000 children in hospitals with Covid, and many on vents. CDC itself is reporting less than 4,000 children in hospitals.

  3. Insanity! The level and degree of sheer dishonesty and disinformation coming from the Biden regime is unprecedented in its overreach and malevolence. But one thing is almost certain: the US Supreme Court will vote to uphold the illegal, immoral and unconstitutional clot shot mandates. Count on it.

    • If your conclusion turns out to be correct, the long overdue collapse of our once glorious Constitutional Republic will commence in earnest, and accelerate rapidly. This is NOT my preferred option, but its difficult to imagine how we can do a decent job of fixing the widespread criminality and corruption, any other way.

      The entire world is ripe for this chaos. I find it startling to consider…

  4. There are Pilot’s Flight Logs circulating on the internet reputed to be from Espstein’s “Lolita Express” flights to his private Caribbean Resort, showing the name John Roberts as a passenger. Then there’s an online photo reputed to be John Roberts sitting in a love seat with Ghislaine Maxwell. Was that Supreme Court Chief Justice John Roberts on that flight? Was that him in the love seat with Ghislaine? Did he “interact” with any of Jeffery & Ghislaine’s underage “Massage Therapists” at the resort? I know this is probably an extremely remote possibility but did Jeffery & Ghislaine possibly video tape and retain evidence from any such “interaction”? Is it possible that such evidence exists and that it may have been used to blackmail the Chief Justice of the Supreme Court, and that John Roberts has been compromised? May this have been a factor in the US Supreme Court’s refusal to look at or review any of the cases filed concerning the massive volume of affidavits and evidence involving ballot harvesting, electronic voting machine manipulation & election fraud resulting in what millions of Americans now believe to have be an illegitimate / stolen election in November ‘2020? Asking for a friend.

  5. I have much, much more difficulty with the TSA mandates than I do with any Covid mandate anywhere. September 11, 2001 was over 20 years ago and killed 3,000 Americans. Covid began less than 3 years ago and has killed over 800,000 Americans. Yet we all take off our shoes and belts, and go through a metal-detector like sheep before we get on a jet flight. Health care professionals are licensed and have received from two to ten years or more of training. TSA people transition between food stamps and working for TSA or TSA contractors; no training, just indoctrination. TSA people take our pocket knives with no regard to whether we have a criminal record! TSA people put us under arrest as we go through their process. I have much more of a problem complying with TSA than I do with anything related to Covid. Go into any hospital and the health care people are very busy. At any airport there are TSA people standing around, even when the airport is very busy. Even Americans in the uniform of the US Armed Forces have to comply with TSA; now how stupid is that? I dodge as much health care as I can, which is just about all of it, but the TSA disgusts me.

    • That’s quite the perspective, worth considering. I would say that there is no constitutional authority for federal vaccine mandates, while there is constitutional authority for interstate commerce and travel.

  6. This sideshow is part and parcel of the regimes plan to collapse the economy and do their part ushering in full-tilt globalism. Covid (I cannot even stand that word anymore) is a vehicle in that regard. It always has been and the response has nothing to do with ‘health’…

    Beyond that–I always thought SC Justices were supposed to be the smartest of the smartest. Breyer thinks we can hide from these viruses and a mandate will be like a magic wand or some other such silliness. These viruses are around us up and down every year and these strains are no exception. We have to keep our immune system robust and healthy and let the viral chips fall where they may. If a vaccine is used, it should be small and tightly targeted.

  7. They’ve already had their Reichstag fire, and now it’s the night of the long knives coming next? So, when do they line us up at mass graves and machine-gun us? That is where this will go if the SCOTUS throws us under the bus.

    • But she/zhe/skre is a womyn, and a Latinxxx, so you cannot take issue with anything she/zhe/skre says without being a misogynist and a white supremacist racist.
      PS: If biological gender does not really exist, can one still be a misogynist?

  8. Given the idiotic comments from Justices Breyer and Sotomayor I would like to change my prediction from a unanimous decision to a 7-2 decision.

  9. I was stunned by the ignorance of Breyer, Kagan and Sotomayor. They should stop getting their information from Twitter.

  10. There isn’t an FDA approved vaccine available in the US. On what planet can mandated use of an experimental drug be mandated by the government?

  11. Isn’t this just sweet Elizabeth Prelogar a Russian Educated Solicitor General the United States!

    Mueller hires Elizabeth Prelogar: Miss Iowa 2001, awarded a Fulbright grant to study in Russia, Harvard Law grad, argued 5 cases before the Supreme Court, from the Solicitor General’s office. Daily Caller: Mueller Hires Another Clinton Donor

    What’s in her crystal ball… full of rubles?

  12. So, here are our Supreme Court justices who are NOT mandated to get a vaccination deciding for thousands of Americans if they can keep their jobs!!! Mandate the SCOTUS and staffers get the vaccinations to keep their jobs.

  13. There’s real danger in this case. If the SCOTUS decides that OSHA (or any other agency) can issue mandates far outside their statutory authority because EMERGENCY, then mandates can be issued for ANYTHING an administration calls an emergency. Climate change, anyone? Cheers –

  14. I never really had much respect for SCOTUS, but it just went down a notch when I heard the sheer stupidity & ignorance concerning Covid data in statements from Sotomayor & Breyer! God help the USA!

  15. These citizens on the bench have taken an oath to defend the US Constitution from all enemies foreign and domestic. The truths are self-evident. If they are rejected and not protected then the oaths are broken and we will all know who stands for our republic and doesn’t.

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