US Supreme Court Hears Oral Arguments on Federal SARS-CoV-2 Vaccine Mandates

the staff of the Ridgewood blog

Washington DC, the US Supreme Court on January 7 heard nearly 4 hours of oral arguments in 2 sets of cases involving federal SARS-CoV-2 vaccine requirements. At issue are 2 federal regulations: the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) that requires all workers at firms with 100 or more employees either get vaccinated or be tested weekly and wear a mask to work (National Federation of Independent Business v. Department of Labor, No. 21A244) and a Centers for Medicare and Medicaid Services (CMS) regulation issued by the US Department of Health and Human Services (HHS) requiring vaccination for nearly all workers at hospitals, nursing homes, and other medical facilities that receive federal funds through Medicare and Medicaid (Biden v. Missouri, No. 21A240). Both cases came to the court last month on an emergency basis, and the justices elected to fast-track the cases for oral arguments to determine whether the Biden administration can continue enforcement of the rules while litigation continues.

The liberal justices particularly put on an impressive display of COVID ignorance with wild assertions about hospitals full to capacity (Breyer) and 100,000 critically ill children (Sotomayor). Sotomayor even asserted Omicron is more deadly than Delta.

Kudos to Justice Gorsuch who asked the lawyers how much power the government has to force vaccinations. Could they, for instance, order everyone to get flu shots, because as he put it: the flu “kills hundreds, thousands of people each year.” This gets to the heart of the issue, but the Biden lawyers artfully dodged an answer.

The court’s conservative majority signaled it is unlikely to permit the Biden administration to enforce the OSHA rule, with several justices questioning the agency’s authority to issue such a wide-ranging emergency regulation without explicit congressional authorization. The court’s 3 liberal justices, on the other hand, indicated the regulation clearly meets OSHA’s authority to take actions to protect workers from “grave danger.” The rule is currently being enforced after the US Court of Appeals for the Sixth Circuit dissolved a stay of the ETS issued by the Fifth Circuit. If the court allows the rule, OSHA expects to begin issuing citations for noncompliance no sooner than February 9.

In the CMS case, more justices appeared to support the Biden administration’s authority to require certain healthcare workers to be vaccinated, unless they qualify for a medical or religious exemption. Notably, Chief Justice John Roberts suggested a clear association between healthcare workers and the safety of patients. Additionally, Associate Justice Brett Kavanaugh noted that none of the facilities or workers covered under the mandate are challenging the requirement and questioned whether the Republican-led states behind the challenge had the legal authority to do so because they operate only some of the facilities affected by the mandate. The CMS requirement is currently blocked in 25 states due to a lower court injunction. The federal government is asking the Supreme Court to lift that injunction. CMS said on December 28 it plans to begin phased enforcement for facilities located in states not covered under the stay, and those facilities’ employees will need to be fully vaccinated by February 28.