By CASEY HARPER
THE CENTER SQUARE SENIOR REPORTER
(The Center Square) — U.S. Supreme Court Justices grilled the Biden administration’s legal team during oral arguments Friday, questioning whether the federal government has the constitutional right to institute a sweeping private sector vaccine mandate across all industries.
Dozens of lawsuits were filed challenging President Joe Biden’s authority to issue the vaccine mandates, which have become a hotbed of controversy about executive branch authority and individual liberties over health care decisions.
The first case heard by justices Friday, National Federation of Independent Business v. Department of Labor, considers a mandate on private employers with at least 100 workers. The second case argued before the Supreme Court, Biden v. Missouri, focuses on a mandate for health care workers.
During oral arguments for the first case, opponents argued that states or private businesses, not the federal government, should retain the authority to implement these kinds of mandates. Vaccines work but “who decides” became a common refrain of the discussion over the mandate.
Under the mandate, the U.S. Occupational Safety and Health Administration would require larger businesses to make sure each of their workers are fully vaccinated against COVID-19 or face weekly testing.
The legal team opposed to the mandate argued that testing is not frequently available, making it very difficult for businesses to fulfill the mandate’s testing requirement. They also argued the mandate places a major financial burden on businesses.
Opponents asked for an immediate stay of the mandate requirement, scheduled to go into effect Feb. 9, arguing that as soon as businesses put out their mandatory vaccination plans, workers around the country will quit. Those vaccination plans are due Monday.
The U.S. has faced a hiring crisis over the past year and opponents say the mandate will exacerbate the problem. They also point out that the mandates go far beyond what Congress identified as high risk workplaces.
The federal government pushed back, arguing that they have the power to implement these rules given the “particularly acute workplace danger” of COVID-19. During arguments, Justice Stephen Breyer, from the court’s liberal wing, brought up the severity of the virus, pointing out the infection increases in recent weeks as the omicron variant spreads. Omicron is more contagious than prior variants but has been found to be far less severe.
Justice Elena Kagan, also a liberal, echoed Justice Breyer’s sentiment, pointing to the severity of the virus.
Justice Kagan also argued that the mandate policy is politically accountable through the president, and that voters can elect a new president to overturn it if they don’t like it. Pres. Biden’s first term ends in January 2025.
Justice Neil Gorsuch, a conservative, asked why something as significant as a vaccine mandate, which in the private sector case affects 80 million workers, should not require an act of Congress, which is charged with making federal law.
“Congress has had a year to act on the question of vaccine mandates,” Justice Gorsuch said. “Now the federal government is going agency to agency as a workaround to its inability to get Congress to act.”
In the only Congressional action on Pres. Biden’s vaccine mandates, the U.S. Senate voted to reject the private sector OSHA mandate, with two Democrats joining all Republicans in seeking to repeal it. The House has not voted.
“The president has decided to regulate a danger and then told OSHA to find a work-related basis for doing so,” Ohio’s solicitor general, Ben Flowers, said during oral arguments. Ohio is among several states arguing the mandates are unconstitutional. “This resulted in the vaccine mandate, a blunderbuss rule nationwide in scope that requires the same thing of all covered employers regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors and regardless of local conditions state and local officials are far better positioned to understand and accommodate.”
While justices seemed open to blocking Pres. Biden’s private sector vaccine mandate, they were tough in their questioning on the mandate for health care workers.
A ruling could happen at any moment because of the request for a stay ahead of the enforcement deadline. It remains unclear, though, when the ruling will be handed down.
Casey Harper works at The Center Square’s Washington, D.C., bureau.