Supreme Court appears poised to block Biden vaccine and testing rules for businesses


But in a separate challenge, some judges appeared more open to a vaccine mandate targeting certain healthcare workers.

The court heard arguments for nearly four hours as the number of infections skyrocket and 40 million adults in the United States still refuse to be vaccinated.

The three liberal judges of the court clearly expressed their approval of the rules of the administration in both areas.

Two sets of rules were released in November. The first would impact some 80 million people and force large employers to force their employees to be vaccinated or to undergo weekly tests. A second regulation requires certain health care workers who work for establishments participating in Medicare or Medicaid programs to be vaccinated.

Critics of the demands, including a coalition of Republican-led business and state groups, say the Biden administration has exceeded its authority by issuing such sweeping warrants that could lead to massive staff shortages and billions. dollars in compliance costs. The administration, meanwhile, is focusing on the impact of the virus, which has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.

Already, judges have overturned a separate attempt by the president to soften the impact of the virus. Last August, a 6-3 court blocked the government’s moratorium on evictions, ruling that the agency involved in the case, the U.S. Centers for Disease Control and Prevention, had overstepped its authority.

“There is no question that the public has a strong interest in combating the spread of the COVID-19 Delta variant,” the court said at the time. But in an unsigned opinion, the majority added: “Our system does not allow agencies to act illegally even in pursuit of desirable goals.” The three liberal judges, Stephen Breyer, Elena Kagan and Sonia Sotomayor were dissenting.
Judge Sonia Sotomayor did not take the bench participated remotely from her chambers. A court spokesman said Sotomayor “is not sick”.
Sotomayor is fully vaccinated and the court announced this week that she had received her booster. Liberal justice has worn a mask in previous disputes probably due to the fact that she suffers from diabetes.

Large employers

The first set of arguments on Friday focused on the rule put forward by the Occupational Safety and Health Administration – an agency that reports to the US Department of Labor and is responsible for ensuring a safe workplace. OSHA requires employers with 100 or more employees to ensure their employees are fully immunized or undergo regular testing and wear face coverings at work. There are exceptions for those who have religious objections.

Two different views on the Covid pandemic exposed to the Supreme Court

The agency said it had the power to act under a temporary emergency standard designed to protect employees if they are exposed to “serious danger.”

The Biden administration is defending the settlement, arguing the nation faces a pandemic “that’s sickening and killing thousands of workers across the country” and that any delay in implementing the requirement for a vaccine or undergoing regular testing “will result in illness, hospitalization and death.

Solicitor General Elizabeth Prelogar told judges in court documents that if the court were to rule in favor of the challengers, it would leave OSHA “powerless” to respond to “serious workplace hazards posed by existing viruses and ‘other infectious diseases, as well as future pandemics. ”

At the very least, she argued, if the court says employers can’t force employees to get vaccinated, it should leave another requirement for frequent masking and testing in place.

The Supreme Court upheld national and local vaccine mandates.  It may not save Biden.

But an attorney for the National Federation of Independent Businesses, representing a coalition of business groups, told the court OSHA lacks the power to put in place a vaccine and testing regime that would cover two-thirds. of all workers in the private sector. Attorney Scott A. Keller pointed out that OSHA’s requirement would impose substantial compliance costs on companies that will face the cost of testing for millions of employees who refuse to vaccinate.

Keller argues the rule will trigger serious staff shortages when workers who oppose the demands step down. “The resulting labor disruption will devastate already fragile supply chains and labor markets at the height of the holiday season,” he wrote in court documents.

Keller told judges that if the court were to rule in favor of the government in the dispute, it would “significantly” expand the agency’s authority over industries that cover a significant portion of the economy. “Congress failed to give OSHA the power to impose emergency warrants and monitor 84 million employees for a known and pervasive hazard that poses no unique hazard to identified workplaces,” did he declare.

Keller is supported by a coalition of states represented by Ohio Solicitor General Benjamin M. Flowers, who told judges that the mandate encroaches on states’ sovereign authority to “adopt and enforce policies that come into effect. conflict ”with a federal vaccination or testing requirement.

A divided panel of judges from the 6th United States Circuit Court of Appeals ruled in favor of the administration, believing that Covid -19 has “continued to spread, mutate, kill and block return in Safe US Workers at Their Work “OSHA” can and should be able to respond to hazards as they evolve.

But a well-respected Conservative judge from the same court expressed his dissent during an earlier phase of the case. Judge Jeffrey Sutton acknowledged “the usefulness of vaccines”, saying: “This is the rare federal judge who didn’t get the message.” He argued, however, that regardless of the political advantages of a well-meaning settlement, “a court cannot enforce it if the agency’s scope goes beyond the scope of a law.”

OSHA has said it will not issue citations for non-compliance to employers until Jan. 10.

Over 10 million healthcare workers

The second rule concerns a vaccination policy rolled out in November by the Centers for Medicare & Medicaid of the US Department of Health and Human Services, which sought to require the Covid-19 vaccine for certain healthcare workers in hospitals, homes nursing and other facilities. who participate in Medicare and Medicaid programs.

According to government estimates, the mandate regulates more than 10.3 million healthcare workers in the United States. Covered personnel were originally scheduled to receive the first dose by December 6, and the warrant allows for certain religious and medical exemptions.

Senior Deputy Attorney General Brian H. Fletcher is asking the Supreme Court to overturn two opinions from lower courts that have blocked tenures in 24 states, arguing that the “unprecedented pandemic” has killed 800,000 Americans and that “the Secretary of State for Health and Human Services has exercised its express legal authority to protect the health and safety of Medicare and Medicaid patients. ”

Fletcher said the requirement “would save hundreds if not thousands of lives every month” and pointed out that patients who participate in Medicare and Medicaid programs are of advanced age or have a disability and are at higher risk. to develop serious complications if they are infected with Covid19.

“It is hard to imagine a health and safety condition more paradigmatic than a requirement that workers in hospitals, nursing homes and other medical facilities take the measures that most effectively prevent the transmission of a deadly virus to vulnerable patients, ”Fletcher said. He also pointed out that while CMS may not have directly required vaccination in the past, workers at Medicare and Medicaid facilities have long been subject to employer or state vaccination requirements for the virus. flu or hepatitis B.

Lawyers for two different groups of states counter that CMS acted outside its authority when issuing the warrant because Congress never specifically authorized the agency to issue such a broad rule. They also accuse the agency of having circumvented normal procedures that would have allowed stakeholders to influence the mandate.

Jesus A. Osete, assistant attorney general for Missouri, called the tenure an “unprecedented sweep” and said it would create a crisis in healthcare facilities in rural America as it would force “millions of workers to choose between losing their job or complying with an illegal federal mandate.

He called the healthcare workers who fought the pandemic “heroes” and said some of them could soon find themselves out of work and stressed that the federal government did not have the power “to force them. health workers to undergo a permanent medical procedure ”.

Separately, Louisiana Solicitor General Elizabeth Murrill, representing another set of states, said the term is also unconstitutional. She argued that under the Constitutional Congress Expenses Clause, the power to legislate “rests on the state knowingly and willingly accepts the terms” of a contract.

In this case, she said, institutions that accept federal funds had no notice of the mandate. She also argued that Congress cannot simply delegate the power to a federal agency to require vaccines for more than 10 million healthcare workers without a clear statement of intent.

“There is no question that mandating a vaccine for 10.3 million healthcare workers is something that should be done by Congress, not by a government agency,” a US District Court judge said. United for the Western District of Louisiana in a ruling against the Biden administration. in November.

The judges agreed to hear the case in a rush with a truncated briefing schedule and it is unclear how fast they will act.

CORRECTION: An earlier version of this story twisted previous positions of judges on state efforts to mandate vaccines.

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