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Where will Supreme Court draw the line on vaccine mandates?

A conservative majority seems ready to pull back on the Biden administration


A courtroom sketch shows attorney Scott Keller arguing against the federal vaccine mandate for businesses on Friday at the U.S. Supreme Court. Associated Press/Photo by Dana Verkouteren

Where will Supreme Court draw the line on vaccine mandates?

Part of the Biden administration’s COVID-19 vaccine mandate for businesses took effect Monday while employers waited for the Supreme Court to rule on it. Companies with 100 or more employees must now require all unvaccinated workers to wear masks.

On Friday—just three days earlier—the Supreme Court heard oral arguments over the business mandate and a similar one for healthcare workers. The justices seemed ready to strike down the former but favor the latter. The two controversial rules would together affect the lives of almost 265 million Americans. A decision is expected soon, but the exact date it will be issued is unknown.

The most far-reaching of the two mandates comes from the Occupational Safety and Health Administration and requires large for-profit and nonprofit businesses and institutions to ensure employees get the COVID-19 shot or submit to weekly testing and masking. The mask mandate for unvaccinated workers began Monday, and the testing requirement is set to take effect on Feb. 9.

“This is something the federal government has never done before,” U.S. Chief Justice John Roberts said during oral arguments on Friday. He said it was “hard to argue” that Congress intended to give such “free rein” to OSHA and wondered why confronting COVID-19 wasn’t “the primary responsibility of the states.” Justice Samuel Alito echoed that concern, comparing the agency’s interpretation of power given it by Congress to “squeezing an elephant into a mouse hole.”

The court’s liberals lined up behind the administration, pointing to rising infections and deaths from the pandemic. Justice Sonia Sotomayor at one point argued that OSHA had a “police power to protect workers. ... I’m not sure I understand the distinction why the states would have the power but the federal government wouldn’t.”

The court’s newest member, Justice Amy Coney Barrett, asked Solicitor General Elizabeth Prelogar a question that goes to the heart of the government’s exercise of pandemic powers: “So when does the emergency end?” OSHA issued the mandate as an “emergency temporary standard,” which can take effect sooner than a typical federal regulation. “When must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way, which doesn’t afford people the voice in the process that they are otherwise entitled to?” Barrett asked.

Independent Louisiana grocer Brandon Trosclair, a party to one of a dozen cases appealed to the court, said a victory would help him retain employees who might seek other employment if forced to get vaccinated or submit to weekly tests. Trosclair, who owns a string of 16 stores in Louisiana and Mississippi, said the mandate would have worsened labor shortages at his stores.

“Since this lawsuit has come out, I’ve had multiple employees come up to me and voice their concerns with the vaccine … saying that, if it came down to it, they would have to leave,” said Trosclair—a result he said would have led to increased prices for shoppers already bit by rising inflation.

Two other appeals heard Friday dealt with a nationwide vaccination directive for healthcare workers in hospitals, nursing homes, and other facilities that receive Medicare or Medicaid funds. In arguments, some justices pointed to precedent allowing the government to put conditions on the spending of federal funds.

Yet that did not seem to satisfy Justice Clarence Thomas. “Don’t you think it’s a bit curious that you’re placing significant reliance on a provision that speaks about ‘necessary to the efficient administration’ [of the program] to administer a vaccine that has—could have—significant health consequences?” Thomas asked an attorney for the government.

Multiple courts have already blocked a similar Biden administration COVID-19 vaccine mandate for federal contractors—with a federal court in Georgia issuing a nationwide order against the directive in early December. Last Wednesday, a divided 6th U.S. Circuit Court of Appeals joined, refusing to put a hold on a lower court order barring enforcement of the vaccination requirement for employees of federal contractors in Ohio, Kentucky, and Tennessee. That ruling came one day after another challenge filed in a federal court in Michigan by federal contract employees who say they have natural immunity to COVID-19 from prior infection.

For religious institutions—whether healthcare entities or Christian universities and seminaries—it’s a matter of unwarranted governmental intrusion into the province of religion. “The larger issue here for the Southern Baptist Theological Seminary is religious liberty,” seminary president Albert Mohler, who is also the editor of WORLD Opinions, said at a November news conference coinciding with the filing of a lawsuit challenging the OSHA mandate. “And on that we take our stand.”


Steve West

Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C.

@slntplanet

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SAWGUNNER

This will hinge largely on whether or not a vaccine requirement is a "reasonable" requirement for hiring or continued employment.