WASHINGTON — Supreme Court justices had sharp questions for both sides Friday during oral arguments in two sets of cases involving federal vaccine mandates.
“Why isn’t this necessary to abate a grave risk?” Justice Elena Kagan asked Scott Keller, an attorney representing the National Federation of Independent Business (NFIB), a plaintiff in the lawsuit seeking an injunction against an Occupational Safety and Health Administration (OSHA) rule — known as an Emergency Temporary Standard, or ETS — requiring that all workers at firms with 100 or more employees either get vaccinated against COVID-19 or be tested weekly and wear a mask to work.
“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 … And this is the policy that is most geared to stopping all this. There is nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves. So whatever necessary means, whatever grave means — why isn’t this necessary and grave?” she asked.
“We do not contest that COVID is a grave danger,” Keller replied. “But when wielding what is supposed to be a delicately exercised extraordinary power, the agency has to consider and explain alternatives. The agency here complained that its non-mandatory guidance wasn’t being followed, and then, instead of saying that maybe some of those guidances could have been made mandatory, it jumped immediately to a ‘vaccine or testing’ mandate.”
Last month a federal appeals court lifted a stay on the mandate, which is now set to go into effect next week. The NFIB is trying to get the stay reinstated.
Why Only the OSHA Rule?
Chief Justice John Roberts asked Solicitor General Elizabeth Prelogar, who argued in favor of mandate enforcement, why the justices should look only at the OSHA rule, noting that several other agencies have also issued similar mandates for healthcare workers and federal contractors. “It seems to me that the more and more mandates that pop up in different agencies, I wonder if it’s not fair for us to look at the court as a general exercise of power by the federal government, and then ask the questions: why doesn’t Congress have a say in this? Why isn’t this the primary responsibility of the states?”
“Congress absolutely has a say in this, and it spoke here,” Prelogar said. “It has the OSH [Occupational Safety and Health] Act and promulgated Section 655 (c), specifically to empower OSHA to take action to protect workers from grave dangers … The fact that there are other agencies here that, likewise, we think are empowered to act to protect America against what’s happening in this country right now shouldn’t diminish the force, or the express statutory authorization here.”
Justice Samuel Alito asked Prelogar whether the testing alternative was really viable given the current reported shortages of available COVID tests. “The agency gave sustained attention to testing capacity … and concluded that there would be ample testing in order to comply with the rule,” said Prelogar. “I’m obviously familiar with the news stories that you’re referencing, and I think that the agency could adjust if that proves to be a problem. But with respect to reviewing this rule, there was certainly substantial basis for the secretary to conclude that this was a viable option.”
Questions About OSHA’s Reach
Justice Stephen Breyer also asked Ohio Solicitor General Benjamin Flowers — whose state is a plaintiff in the OSHA case — why, if OSHA can regulate things like fire risks, it can’t impose a ‘vaccine or test’ mandate. “The difference with the fire is that there’s something about the workplace, for example, not providing safety equipment to put out the fire,” said Flowers, who answered questions by phone because he was not allowed inside the Supreme Court building due to a positive COVID-19 test. He added, however, that “simply the fact that a risk exists outside the workplace, doesn’t mean you can’t address it when it’s inside the workplace. What we dispute is the idea that a risk that is ever present in all places can be regulated simply because it’s also in the workplace.”
Justice Amy Coney Barrett asked Prelogar about the status of the ETS. “A lot of this argument has been about Congress’s failure to act,” she said. “Two years from now, do we have any reason to think that COVID will be gone, or that new variants might not be emerging? And when must OSHA actually resort to its regular authority and go through notice and comment, and not simply be kind of doing it in this quick way, which doesn’t afford people voice in the process that they’re otherwise entitled to?”
“If you want to project out 2 years from now, I think it’s entirely possible, of course, that the trajectory of the pandemic will change; I certainly hope so,” Prelogar replied. “And in that case, OSHA, I think, would have to, if it wanted to regulate, cross the high burden of showing a grave danger. To suggest, based on concern about what might happen in the future, that its authority should be constrained or clipped now, when we are in the middle of an unprecedented pandemic that is claiming more lives than we’ve seen in a shorter amount of time, we do a disservice to Congress’s anticipation that OSHA might need to act quickly in response to dangers like this.”
Breyer Worries About Pandemic’s Toll
Breyer was extremely focused on the toll that the pandemic was taking. “There are 750,000 people who got this yesterday, and the hospitals are going [toward] overflowing,” he said during questioning of Jesus Osete, deputy attorney general of Missouri, who was seeking to stop enforcement of a vaccine mandate issued by the Centers for Medicare & Medicaid Services that will apply to healthcare workers at any facility that accepts Medicare or Medicaid payment. “People all over the world are getting this — and they are here, too — and they’re dying. They’re filling up hospital beds and others are dying because they can’t get in.”
“Every minute these things are not in effect, thousands more people are getting this disease,” he continued. “And we have some discretionary power. And you’re telling me I can’t take that into account? To me, that’s fairly unbelievable.”
The mandate is currently blocked in 25 states due to a lower-court injunction; the federal government is seeking to get that injunction lifted. The mandate requires the affected facilities to have their employees vaccinated with at least one dose by January 27 and two doses by February 28.
“The public interest is flexible, and you can take all that into account,” Osete said. “All I’m saying is the two statutes — the provisions that the [Health and Human Services] secretary has put forward in this case — we do not believe that they have met their burden of showing a likelihood of success on the merits that those were lawful exercises of authority. Even in situations where the secretary desires to prevent the spread of COVID, it cannot act unlawfully.”
Going ahead with the mandate, he asserted, “is going to devastate local economies, it’s going to decimate these local towns that don’t draw their pool of applicants from the [East] Coast. These are local communities; they run these hospitals.”
Justice Kagan asked Osete why the HHS secretary didn’t have the authority to institute a vaccine mandate in healthcare facilities as a basic infection control measure. “All the secretary is doing here is to say to providers, ‘You know what? The one thing you can’t do is kill your patients. You have to get vaccinated so that you are not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients.’ That seems like a pretty basic infection prevention measure.”
“You’re dealing specifically with the vaccine requirement that has historically been in the state’s province,” Osete responded. “And if Congress wants to give that authority to CMS, it has to do so in exceedingly clear language.”