Key to Biden’s pandemic response on thin ice at Supreme Court

The liberal justices did not hide their disdain for arguments against what they viewed as an effective strategy to save lives. 

“This is a pandemic in which nearly a million people have died,” Justice Elena Kagan said. “It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don't mean to be dramatic here, I'm just sort of stating facts, and this is the policy that is most geared to stopping all this. There is nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.” 

Many of the justices pondered who should decide if vaccine mandates were necessary, but Kagan was the only justice to definitely come out against the court making that decision. In her view, the president should be able to make the decision because voters can hold him politically accountable. 

“This is a publicly politically accountable policy,” the Obama appointee said. “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?” 

Justice Stephen Breyer repeatedly stressed the urgency of vaccinations in stopping the rapidly rising cases across the country. 

“Seven hundred and fifty million new cases yesterday, or close to that, is a lot,” the Clinton appointee said. “I don't mean to be facetious but that’s why I said I would find it you know unbelievable that it could be in the public interest to suddenly stop these vaccinations.” 

The business group, represented by Scott Keller, an attorney at Lehotsky Keller, said even the government didn’t want to comply with its own mandate — citing the Postal Service’s request for a temporary delay. Ohio Solicitor General Benjamin Flowers said the government just wanted to mandate vaccines so it told OSHA to find a work-related basis to do so. 

The justices seemed eager to act quickly on the OSHA mandate, floating the possibility of granting a stay in the case as soon as Friday night. On Monday, OSHA will start enforcement of its mandate requiring employees to start tracking vaccination statuses and require masking. The testing portion of the mandate would not begin until Feb. 9. 

“If the OSHA ETS is stayed by the Court, I expect that we would then see states and local jurisdictions begin to enact their own rules more aggressively,” Strowhiro said. “As with so many employment-related Covid-19 laws, this would create a patchwork of differing and potentially conflicting rules across the states that will be difficult and burdensome for multistate employers to track and comply with.” 

Lawrence Gostin, a professor at Georgetown University and director of the World Health Organization Collaborating Center on National & Global Health Law, said striking down the mandate would harm America's pandemic response and harm the rule of law. 

“It would be a devastating blow to the Covid response and to the rule of law,” Gostin said. “Clearly, Congress authorized OSHA to keep workers safe, which includes preventing transmission of a potentially deadly virus. To suggest that the nation is not in an emergency is absurd with over 1,000 people dying every day. It is a sad day for public health in America.” 

Some of the justices seemed more amenable to a vaccine mandate for health care workers at federally funded hospitals, which is currently on hold in 25 states. A nationwide injunction was originally in place for the mandate until the Fifth Circuit ruled that it could only apply to the 14 states involved in the lawsuit. The Eighth Circuit also awarded an injunction to 10 additional states fighting the lawsuit. Texas has its own separate challenge to the requirement. 

Roberts pitted the argument for the health care worker mandate against the OSHA mandate. 

“We're dealing here in this case with health care with Medicare and Medicaid, and what could be closer to addressing the Covid-19 problem to health than health care,” Roberts said. “I mean, people already get sick when they go to the hospital but if they go and face Covid-19 concerns well, that's much worse. On the other hand, OSHA it's a workplace.” 

Kavanaugh said there was a missing element in the state’s case against the mandate because there was a missing element of the people who were affected by the law actually fighting it. 

“This is an unusual administrative law situation, from my experience, because the people who are regulated are not here complaining about the regulation, the hospitals and health care organizations,” the Trump appointee said. “It’s a very unusual situation. They, in fact, overwhelmingly appear to support the secretary's CMS regulations.”  

Kagan said it was the responsibility of HHS to protect vulnerable populations, such as those treated in CMS facilities, from infection. 

“Basically all the secretary is doing here is to say to provider, you know what, basically the one thing you can’t do is to kill your patients,” Kagan said. 

The government, represented by Brian Fletcher, principal deputy solicitor general at the Justice Department, argued that vaccines are a common way for hospitals to prevent the spread of diseases. 

“Vaccination requirements are a traditional and common way to curb the spread of infectious disease,” Fletcher said. “Many health care workers are already required to be vaccinated against diseases like hepatitis, measles and the flu.” 

Missouri’s Deputy Attorney General Jesus Osete and Louisiana’s Solicitor General Elizabeth Murrill, arguing against the government’s rule, said the mandate would result in worker shortages and that the move was unprecedented. Fletcher countered that many workers subjected to vaccine mandates end up complying with them instead of losing their jobs. 

“Experience from around the country shows that most workers actually will choose to be vaccinated rather than to leave their jobs in response to vaccination requirements,” Fletcher said. 

The court continues to operate under strict Covid guidelines and requires all attorneys and reporters to be tested regularly. Sotomayor elected to participate in oral arguments from her chambers instead of from the bench with her colleagues. Flowers and Murrill participated in the arguments remotely. All the justices are vaccinated and boosted. 

Follow @KelseyReichmann

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