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Supreme Court conservatives appear skeptical of 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 / AP]
The Supreme Court heard challenges Friday to the Biden administration efforts to increase the nation's vaccination rate against COVID-19.

Conservative justices on the U.S. Supreme Court appeared skeptical Friday of the Biden administration's vaccine-or-test mandate it imposed on large companies amid the COVID pandemic.

At issue in the first of two challenges to the Biden administration's vaccination rules was a regulation issued by the Occupational Safety and Health Administration that applies to all companies that employ 100 or more workers.

The Biden administration has estimated the rule would affect tens of millions of workers.

The OSHA regulation was enacted under Congress' power to regulate interstate commerce, a target of many current court conservatives. The rule was enacted under a broad statute that allows the agency to issue emergency rules when it deems them "necessary" to protect workers from a "grave danger." That said, OSHA has never enacted a vaccine-or-test rule like this one.

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

But the rule was challenged by a coalition of large and small business groups, 27 states and individuals. They argued that the law exceeds what Congress intended in enacting the 1970 OSHA statute — an argument Chief Justice John Roberts appeared to sympathize with.

"It seems to me that the government is trying to work across the waterfront and is just going agency by agency," Roberts said to Solicitor General Elizabeth Prelogar, the government's lawyer. "I mean, this has been referred to as a 'workaround' and I'm wondering what it is you're trying to work around."

Justice Neil Gorsuch, another conservative, asked Prelogar: "Why isn't this a major question that normally under our Constitution would be reserved to the people's representatives in the states in the first instance and the halls of Congress in the second?"

But the court's liberals, such as Justice Stephen Breyer, appeared more receptive to the government's argument.

"I would find it would be unbelievable to be in the public interest to stop these vaccinations," Breyer said.

Challenging rules for health workers

The other challenge involved rules issued by the Centers for Medicare and Medicaid Services, which mandates vaccinations for all employees at hospitals, nursing homes and other health care providers that receive federal funds.

Or as Justice Elena Kagan put it, the government was simply telling providers, "You know what, basically the one thing you can't do is to kill your patients, so you have to get vaccinated."

Those challenging the CMS rule contend that millions of health care workers will leave their jobs, rather than comply with the mandate. But the Biden administration points to studies showing that less than 1% of health care workers have left their jobs as the result of vaccine mandates. For instance, when the Houston Methodist Hospital system imposed a vaccine mandate, only 153 workers out of more than 61,000 resigned rather than comply.

Indeed, even Justice Brett Kavanaugh, one of the court's conservatives, noted that workers hadn't challenged the rule.

"The people who are regulated are not here complaining about the regulation," he said. "It's a very unusual situation."

Of the two rules before the Supreme Court , the mandate for health care providers received a more sympathetic hearing from the justices; courts have long held that when the federal government funds a program like Medicare or Medicaid it has the authority to put conditions on how the money is used, to ensure that it is used wisely, efficiently, and that it is not being used to expose patients to greater risks.

The cases are in a preliminary posture, but how the court rules will very likely signal how these issues are ultimately resolved.

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