The U.S. Supreme Court heard arguments Friday in a high-stakes public session to decide whether the U.S. government can begin enforcing sweeping COVID-19 vaccine requirements affecting nearly 100 million workers.
The justices heard separate oral arguments over federal vaccine and testing rules for larger businesses and vaccine mandates for health care workers at facilities receiving Medicaid and Medicare funding.
Several Republican-led states, business coalitions, religious groups, and other opponents have challenged the Biden orders- known as “emergency temporary standards.”
The issue could also serve as a legal template to the regulatory limits of the governments across a range of future disputes over executive authority.
Justice Breyer points to the increase in cases and hospitalizations across the country due to Omicron and asks how it can be in the public interest.
“How can it conceivably be in the public interest with three-quarters of a million people, I don’t know how many today, you have hospitalization figures growing by factors of 10, you have hospitalizations near the record, at the record… how can it be in the public interest, which is a requirement,” Justice Breyer said. “That’s what I want to hear the answer to.”
Keller warned in response: “This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs.” Adding that only “28% of employers can find adequate weekly testing. He also argues that If Congress intended for OSHA to have that kind of power, it should have clearly stated so.”
For more than two hours, the justices heard oral arguments over federal vaccine and testing rules for 100 employees or more businesses. It is now hearing arguments on vaccine mandates for healthcare workers at facilities receiving Medicaid and Medicare funding.
In the early parts of the arguments, Chief Justice John Roberts and Justice Neil Gorsuch suggested that government officials had overstepped. Roberts declared that it is “hard to argue” that officials had been given the power to act by Congress.
Justice Amy Coney Barrett went on the offensive during the oral arguments, suggesting that its broad scope was one problem with the rule. Asking attorney Keller if he argues that power is overly broad and if OSHA could require it for high-risk areas like dentistry, meatpacking, healthcare.
“This ETS is so far beyond healthcare and what Congress defined as high-risk workplaces,” he says. Barrett then asks if he would be here arguing against this standard if it was just masking and testing – no vaccines. He says yes because it is still a medical procedure.
Other federal courts have blocked a separate mandate in 24 states. It requires a broad range of health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption.
That policy would affect an estimated 17 million workers and was also fully set to effect this week.
The question isn’t what this country will do about COVID. It’s who gets to decide that.