U.S. Supreme Court Conservatives oppose Biden’s corporate vaccination policy

The nine judges on the court, all of whom are vaccinated, heard more than 3.5 hours of argument in two cases that test presidential credentials to fight a raging public health crisis that has already killed an estimated 835,000 Americans.

The Conservative justices, who hold a 6-3 majority, have shown sympathy for arguments from the state of Ohio and a group of businesses that the Federal Workplace Safety Agency that issued the rule affecting businesses with 100 or more workers – a policy requiring vaccines or weekly COVID -19 tests for more than 80 million employees – has exceeded its legal authority.

The challengers have asked the court to block the policy before the administration begins enforcing it on Monday.

Court conservatives suggested that the 1970 law that created the Occupational Safety and Health Administration (OSHA) did not allow this type of large-scale emergency action.

They seemed more open to a separate federal vaccine requirement that the states led by Missouri and Louisiana are asking the court to block nationwide. It covers about 10.3 million workers in about 76,000 healthcare facilities, including hospitals and nursing homes, which accept money from government Medicare and Medicaid health insurance programs for older Americans, disabled and low income.

Conservative judges have shown skepticism of sweeping actions by federal agencies in past rulings.

Decisions in both cases are expected quickly.

The arguments underscored how controversial the issue of vaccination has become in the United States, as in many countries.

The three liberal judges said both policies were justified during a pandemic showing no signs of slowing down, with an increase in COVID-19 cases driven by the rapidly spreading variant of the Omicron coronavirus.

“This is a pandemic in which nearly a million people have died,” Liberal Judge Elena Kagan said, referring to death toll in the United States during OSHA mandate discussions . “This is by far the greatest public health threat this country has faced over the past century. More and more people are dying every day. More and more people are falling ill every day. … And it is the policy which is the most adapted to stop all this.

Chief Justice John Roberts and fellow Conservative Justices Neil Gorsuch and Brett Kavanaugh have indicated that the OSHA rule could be invalid under legal doctrine that Congress must provide a clear statement on a specific issue in order for it to be ‘a federal agency can issue general regulations on this subject.

Conservative judges suggested Congress or individual states would be in a better position to act.


Roberts expressed doubt that the law passed by Congress establishing OSHA allowed him to take such action.

“It was 50 years ago that you say Congress acted. I don’t think he had COVID in mind. It was almost closer to the Spanish flu than it is to today’s problem, ”said Roberts, referring to the pandemic that occurred a century ago.

The White House said the two temporary terms would save lives and strengthen the U.S. economy by increasing the number of Americans vaccinated by the millions.

“I would find it incredible to be in the public interest to stop these vaccinations,” said Liberal Judge Stephen Breyer.

Some judges have raised the possibility of the court issuing a temporary stay blocking the OSHA rule while the court decides how to proceed.

Roberts and Kavanaugh seemed more sympathetic to the Biden administration’s arguments regarding the mandate for healthcare facilities issued by the Centers for Medicare & Medicaid Services (CMS), the agency responsible for administering these programs.

Kavanaugh noted that private health care providers have not challenged the state-challenged mandate. Conservative Judge Amy Coney Barrett has suggested the government may require vaccinations in some facilities but not others.

Gorsuch seemed skeptical of the policy as a whole, questioning whether CMS had the power to issue vaccine regulations because such action affects an employer’s staffing decisions, which Congress said l The agency could not do so within its Medicaid and Medicare funding requirements.

Gorsuch said “you can’t use money as a weapon to control these things”.

All the government does, Kagan said, is “tell providers, you know what basically the only thing you can’t do is kill your patients, so you have to get vaccinated.”

Liberal judge Sonia Sotomayor participated in her cabinet’s arguments. Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Liz Murrill participated remotely by phone. The flowers have tested positive for COVID-19, his office said. Murrill’s office said she acted in accordance with the court’s COVID-19 protocols, which require attorneys to argue remotely if they receive a positive test.

Judges spent much of the pandemic working remotely before returning to arguments in person in October, though the building remains closed to the public.

Biden’s administration has called on judges to lift lower court orders blocking the CMS mandate in half of the 50 states.

On December 17, the Cincinnati-based 6th U.S. Court of Appeals lifted an injunction issued by another court that had blocked OSHA’s rule, prompting protesters to ask the Supreme Court to intervene. .

(Reporting by Lawrence Hurley and Andrew Chung; Additional reporting by Tom Hals; Editing by Will Dunham)

Edward K. Thompson