WASHINGTON — Fully vaccinated and mostly masked, the Supreme Court’s conservative majority appeared skeptical, Friday, of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The court seemed more open to a separate vaccine mandate for most health care workers.
The arguments in the two cases come at a time of spiking Coronavirus cases because of the Omicron variant, and the decision, Friday, by seven justices to wear masks for the first time while hearing arguments reflected the new phase of the pandemic.
An eighth justice, Sonia Sotomayor, a diabetic since childhood, didn’t even appear in the courtroom, choosing to remain in her office at the court and take part remotely. Two lawyers, representing Ohio and Louisiana, argued by telephone after recent positive COVID-19 tests, state officials said.
But the COVID circumstances did not appear to outweigh the views of the court’s six conservatives that the administration overstepped its authority in its vaccine-or-testing requirement for businesses with at least 100 employees.
“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a half-century established law, the Occupational Safety and Health Act, confers such broad authority.
Roberts and Justices Brett Kavanaugh and Amy Coney Barrett probably hold the key to the outcome in both cases, as they have been more receptive to state-level vaccine requirements than the other three conservative justices.
The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.” And Justice Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to put that rule on hold. He said that, on Thursday, there were some 750,000 new cases in the country and that hospitals are full.
Beginning Monday, unvaccinated employees in big companies are supposed to wear masks at work, unless the court blocks enforcement. But testing requirements and potential fines for employers don’t kick in until February.
Roberts, Kavanaugh and Barrett seemed to have fewer doubts about the health care vaccine mandate. Kavanaugh said it was a “very unusual situation” that hospitals and health care organizations affected by the regulation were “not here complaining” about the rule but instead support it. “What are we to make of that?” he asked.
The second regulation is a mandate that would apply to virtually all health care staff in the country. It covers health care providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.