'Why in the world would courts decide this question?' Justices split over vaccine mandates

The U.S. Supreme Court’s conservative majority appeared deeply skeptical Friday that the Biden Administration’s vaccine-or-test mandate for large employers was legally authorized, but seemed more inclined to support the vaccine requirement for health care workers in Medicaid -and Medicare-funded facilities.

The justices heard more than three hours of arguments on the two federal agency rules, but it was clear that a chasm existed between the court’s conservative and liberal wings over whether the Occupational Safety and Health Administration had statutory authority to issue the “emergency temporary standard” for employers with 100 or more employees. The standard requires employers to give their employees a choice: To vaccinate or to test weekly and wear masks in the workplace.

“It seems to me that the more and more mandates that pop up in different agencies, I wonder if it’s not fair for us to look at this as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why doesn’t this be the primary responsibility of the states?” Chief Justice John Roberts Jr. asked U.S. Solicitor General Elizabeth Prelogar.

But Justice Elena Kagan voiced no doubts as to who had the authority to make the decision about whether vaccines should be required in the workplace amidst a pandemic.

“This is a publicly—a politically accountable policy,” Kagan told the challengers’ counsel, Scott Keller of Lehotsky Keller. “It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question?”

The justices were not deciding the legality of the two vaccine mandates. Instead, they were weighing whether to block them from taking effect while appeals proceed in the lower courts. However, in making those decisions, the justices do consider several factors, including whether the party seeking an injunction is likely to prevail on the merits, the possibility of irreparable harm and the public interest.

The government argued that the Occupational Safety and Health Administration has authority to issue emergency workplace rules for up to six months to protect employees “exposed to grave danger” from “substances or agents determined to be toxic or physically harmful or from new hazards.” The coronavirus, according to Prelogar, falls well within that authority.

At one point in the argument, Justice Samuel Alito asked Prelogar if the government would object to a brief “administrative stay” of the employer mandate to give the court “a couple of days to think about” the “difficult and complex issues” the mandate raises and “before people start losing their jobs.”

Prelogar answered that she did not think a stay was warranted but would defer to the court.

But Justice Stephen Breyer reacted quickly to the suggestion, saying, “So if we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, wouldn’t have? I mean, I—I don’t doubt the power of the court to issue a stay. I’m just saying what are the consequences of that?”

Numerous lawsuits challenging the employer rule were consolidated before the U.S. Court of Appeals for the Sixth Circuit. A 2-1 panel dissolved an earlier injunction issued by the Fifth Circuit that prevented the rule from taking effect and it is now effective nationally.

The second round of arguments involved  the vaccine requirement for more than 17 million health care workers at facilities that receive Medicaid and Medicare funding. The Fifth and Eighth Circuits affirmed Missouri and Louisiana district court injunctions stopping that rule from taking effect in roughly half the states.

Principal Deputy U.S. Solicitor General Brian Fletcher told the court that the secretary of Health and Human Services and the Centers for Medicare and Medicaid Services have broad and specific authority in operating statutes to protect the health and safety of patients in Medicare and Medicaid funded facilities.

Justice Amy Coney Barrett asked what to do if she agreed that some statutory provisions supported that authority but others don’t. Fletcher replied the emphasis should be on the statutory text, and at least 11 of the 15 provisions relied upon for the mandate have specific references to health and safety.

And Roberts noted that the state challengers had “signed the contract” for federal Medicaid and Medicare funds that require compliance with health and safety regulations.

Fletcher and attorneys representing the state challengers disagreed on the impact of the mandate on rural facilities. Missouri Deputy Solicitor General Jesus Osete and Louisiana Solicitor General Elizabeth Murrill argued that small and rural patient facilities would be devastated by the loss of workers who refuse to be vaccinated.

Justice Brett Kavanaugh said the case was unusual because the parties being regulated by the mandate were not complaining about it before the justices. “They overwhelmingly appear to support the CMS regulation,” he said, referring to major medical and hospital groups.

Louisiana’s Murrill argued the agency failed to give the states adequate notice of the regulation. “No one expected COVID,” she said. “[The mandate] is not something we could have expected given the broad language in the statute. It’s a bureaucratic power move that is unprecedented.”