Leaning Jobs Over Jabs
Terry H. Schwadron
Jan. 8, 2022
There were the nine Supreme Court justices, either present in a Covid-limited courtroom or calling in from afar, hearing an emergency case about government power to issue mandates aimed at getting as many workers as possible vaccinated against Covid.
It was kind of crazy on its face, even as Omicron cases and hospitalizations are rising geometrically.
So, justices who have Covid rules in place — as federal agencies do — for their own health, were balancing whether the federal government through the Occupational Safety and Health Agency has the power to demand that businesses with more than 100 employees offer or promote testing, masks, or vaccines to ameliorate spread of a pandemic or to mandate that health care workers get vaccines at the risk of losing federal support.
Crazier yet, while they have covid laws, they seemed skeptical of the laws that would affect other workplaces.
The court was hearing a pair of cases brought by Republican leaders and business groups to stop the rules from going taking effect, leading to injunctions and differing opinions in the lower courts. After groups filed emergency requests with the Supreme Court, the justices decided to expedite the hot-button cases and hear them together. Only one for medical workers involved mandating vaccines.
The words in the live-to-web hearings were about Covid, but the invisible scramble behind the arguments was a theater piece on partisan politics and the wider divide over following public health measures. Even more broadly, it was a debate over how much power the government and the executive branch must issue any federal orders.
The arguments of the challenges were a little squirrelly and changed quite a bit, depending on who was asking a question.
But they came down to a few: OSHA lacks authority for any blanket emergency mandates for business, though states can do so; the law authorizing OSHA to regulate workplaces does not allow undifferentiated orders on a public health problem; and it is Congress or states that have the powers that apparently do not fall to OSHA and the federal government.
The arguments to allow such mandates where they make sense in an emergency, even an extended public health situation, and that OSHA is allowed to regulate workplaces against a variety of other dangers.
The arguments
Naturally, the legal arguments got a lot pickier than the political ones about mandates.
Justice Stephen Breyer took on the obvious: Given the increase in cases and hospitalizations across the country from Omicron, how it can be in the public interest to halt such an order, he asked. The response from Scott Keller, representing the Natl. Federation of Independent Business, was that too many employees would be forced from their jobs, an argument later picked up by the challenging lawyers in the hospitals case.
Justice Sonia Sotomayor said the OSHA vaccine requirement is not a mandate. “It’s something totally different,” she said, because it included substitute weekly testing. Justice Elena Kagan sought to identify the key question as who gets to decide whether mandates are needed rather than any limits of the scope of orders.
For Justice Clarence Thomas, a key question seemed to be whether vaccines are effective across the board for all workers, something drawing retort from Sotomayor.
Justice Samuel Alito and Justice Neal Gorsuch questioned the general police powers of the agencies involved, and the degree to which OSHA would be trying to squeeze the “elephant” of covid into the “mousehole” of authorization by statute. Alito pushed the argument about risk from vaccines. “Has OSHA ever imposed any other regulation that has some risk associated with it,” he asked.
The questions over the Centers for Medicare and Medicaid Services order followed a similar pattern, though the authorizing laws are more precise about the workplaces covered with regard to health and safety requirements for 15 types of facilities.
As usual, there were questions about the original authorizing laws could possibly have specifically had identified covid or something like it as opposed to more general protections like fire prevention measures.
At the risk of overgeneralizing, the questions from the court liberals leaned in support of actions on behalf of public health, while the questions from conservatives leaned toward overreach of government agencies or of existing law.
Given the numbers, that spells trouble for the Biden administration’s war on covid through use of mandates.
Then again, the Court doesn’t have to come up with policy to keep people safe, just to keep lawyers busy.
Enforcement Issues
OSHA said it will not issue citations for any part of the rule before next week and won’t enforce the weekly testing requirement until next month. CMS already is enforcing its rule in the states where it can, the agency is giving health care facilities several weeks to reach 100% vaccination rates before they can be fined or lose federal funding.
One question facing the court is whether they must act quickly to issue a stay. Alito challenged why an instant decision is needed now when the cases have taken four months or more to arrive at the Supreme Court.
Chief Justice John Roberts Jr. suggested at one point that federal agencies seem to be moving one by one to impose mandates or orders that cannot pass through a divided Congress, an issue pressed by Justice Brett Kavanaugh.
At heart here, there was agreement that what brings the cases to the court is its scope. Traditionally, OSHA has not mandated protections against other widespread diseases.
But there is a broader question here that might be applicable to other areas in which government action might be challenged, one in which states’ rights should rise higher than those of the federal government. The justices, for instance, rejected an eviction moratorium — first imposed by the Trump administration and extended by Biden — because it said the Centers for Disease Control and Prevention had exceeded its authority.
For a court consumed by the charge that its membership has become politicized, the hearing provided yet more fuel for that feeling.
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