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Supreme Court's conservatives cast cloud over vaccine-or-test mandate for businesses

The Supreme Court heard challenges Friday to the Biden administration efforts to increase the nation's vaccination rate against COVID-19.
Evan Vucci
The Supreme Court heard challenges Friday to the Biden administration efforts to increase the nation's vaccination rate against COVID-19.

Justices seemed more open to the vaccine mandate for almost all workers at hospitals, nursing homes, and other medical providers receiving federal Medicare and Medicaid funds.

Updated January 7, 2022 at 7:12 PM ET

The Supreme Court's conservative supermajority on Friday seemed ready to block some or all of the Biden administration's regulations aimed at increasing vaccinations nationwide.

At issue in the nearly four-hour argument were two regulations:

  • 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.
  • But even as the justices debated some pretty dry-sounding statutory and procedural issues, the pandemic itself crept inalterably into the courtroom. 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 vaccine-or-test regulation was issued by the Occupational Safety and Health Administration; it was enacted under Congress' power to regulate interstate commerce, a target of many current court conservatives. The statute allows the agency to issue emergency rules when it deems them "necessary" to protect workers from a "grave danger."

    The Biden administration contends that under the 1970 Occupational Safety and Health statute, it was obligated to act. After all, COVID-19 has already claimed more than 800,000 lives in the United States and sickened 50 million more, many with lasting effects.

    But at Friday's argument, the OSHA regulation ran into a conservative buzz saw. Right off the bat, Chief Justice John Roberts cast doubt on the 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 court's three liberal justices were, quite simply, incredulous. When Justice Thomas questioned the necessity of the vaccine-or-test regime, 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.

    More and more people are dying every day and more and more people are getting sick every day, she said, adding that "this is the policy that is most geared to stopping all this."

    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."

    Lawyer Scott Keller, representing the challengers, replied that states can always impose their own vaccine mandates. That prompted Sotomayor to counter that some states have made vaccine and mask mandates illegal. The OSHA rule, she said, is exactly the kind of national rule that Congress provided for in the statute.

    In the second case argued Friday, involving health care workers, the court's conservatives did not seem as unified in their hostility. As the chief justice observed, the regulation, issued by the Centers for Medicare and Medicaid Services, is different because it is based on the long-established principle that when the government funds a program, it can put conditions on how the money is used.

    "What could be closer to addressing the COVID-19 problem ... than health care," he said, adding that when people people go to a hospital, for whatever reason, "if they face COVID-19 concerns , well, that's much worse."

    Justice Kagan, by then infuriated, put it more bluntly. All the rule does is "say to providers ... 'Basically, the one thing you can't do is kill your patients.' "

    Friday's special session was heard on an expedited basis because the OSHA regulation is about to go into effect, and the Medicare and Medicaid vaccine mandate for health care workers has been blocked by a lower court. So the court is likely to act within days.

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    Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.