The conservatives on the Supreme Court seemed ready to block some or all of President Biden’s regulations for vaccine or vaccine and test mandates on Friday.
- One imposes a vaccine mandate for almost all workers at hospitals, nursing homes and other medical providers receiving federal Medicare and Medicaid funds.
- The other is a separate vaccine-or-test mandate for private sector companies that employ 100 or more workers.
Chief Justice John Roberts cast doubt on the OSHA regulation, declaring: “This is something the federal government has never done before.”
Justices Neil Gorsuch, Brett Kavanaugh, Clarence Thomas and Samuel Alito indicated even more strongly that, in their view, the regulation went too far. They argued that at minimum Congress would have to enact a new statute that specifically authorizes the vaccine-or-test regulation. The chief justice and Justice Amy Coney Barrett appeared less categorical in their approach, but both were clearly skeptical of the regulation.
The three liberal justices were incredulous.
- Justice Elena Kagan acidly noted that “nearly a million people have died” in the pandemic so far. “It is by far the greatest public health danger that this country has faced in the last century,” she said.
- Justice Stephen Breyer disputed the challengers’ assertion that the regulation should be blocked “in the public interest” when “nearly three-quarters of a million people” are being infected every day. “I would find that unbelievable.”
- When one lawyer suggested states could opt for their own vaccine mandates, Justice Sonia Sotomayor pointed out that some states have made vaccine or mask mandates illegal. The OSHA rule, she said, is exactly the kind of national rule that Congress provided for in the statute.
The conservatives were less hostile to the health care worker mandates. Roberts noted that this regulation is based on the long-established principle that when the government funds a program, it can put conditions on how the money is used.
The effects of the pandemic couldn’t have been more obvious as the Supremes heard the arguments. Two of the lawyers challenging the Biden administration rules made their argument via telephone because they both have COVID, and Justice Sonia Sotomayor, a lifelong diabetic, was not in the courtroom, choosing instead to participate from her chambers.
The court is likely to act within days.