The Supreme Court’s conservative justices grilled the Biden administration as it seeks to implement its mandate to require companies that employ more than 100 people to have their employees either be vaccinated or take a Covid-19 test once a week.
Multiple states have filed lawsuits against the Biden administration’s mandate. The current Chief Justice John Roberts grilled US Solicitor General Elizabeth Prelogar about whether Congress had a vaccine-or-test mandate in mind when it passed the Occupational Safety and Health Act of 1970.
“That was almost closer to the Spanish flu than it is to today's problem,” he said in reference to the pandemic that began in 1918. “Now, I understand the idea that agencies are more expert than Congress, I understand the idea that they can move more quickly. than Congress. This is something that the federal government has ever done before right, mandated vaccine coverage.”
Associate Justice Neil Gorsuch questioned why the Occupational Safety and Health Administration, the agency through which the Biden administration wants to administrate the vaccine-or-test mandate, had not implemented similar mandates for polio or for the flu, noting that it kills hundreds of thousands of people a year – despite the fact it only kills between 12,000 to 52,000 people per year.
“What do we make of that when we're thinking about what qualifies as a major question and what doesn't,” Mr Gorsuch asked.
“With respect to other diseases where there are effective vaccinations, I think the the simple explanation for why OSHA hasn't had to regulate workplace exposure to that is because virtually all workers are already vaccinated with respect to many of those diseases all of us have, at one time or another been subjected,” Ms Prelogar said in response. “Mostly we know that to be true with a flu is an exception because it's a seasonal illness.”
Similarly, Associate Justice Brett Kavanaugh asked Ohio Solicitor General Benjamin Flowers about the value of insisting on congressional action, seeming to side with the argument.
“Well, one, one value of it is when there's an emergency, it's especially important that it be a considered thoughtful process and legislation is more likely to yield that and in an emergency, you're more likely to get broad agreement on on certain principles that can be enacted through Congress and indeed, Congress has taken to ensure that there are to address Covid-19,” Mr Flowers said.
Associate Justice Amy Coney Barrett, the court’s newest justice, asked the National Federation of Independent Business’s counsel Scott Keller, who was arguing against the mandate, about the fact some workplaces where employees are at a greater health risk such as a meatpacking plant or a dentist’s office.
“I think what you're saying is that even if there are some industries or some people who would face a great risk, and this might be necessary to address that risk, so in other words, if OSHA had adopted a more targeted rule, you might not be contesting that or you would not be contesting that,” she said.
Rather, Ms Barrett asked whether the problem NFIB had was with the mandate’s scope
The court’s three liberals – Associates Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer – argued that the disproportionate effect of Covid-19 on everyday lives put the mandate under OSHA’s jurisdiction.
Ms Kagan said that nearly every sector of employment changed because of the pandemic.
“Every workplace sent their workers home. Every workplace had to adjust to the way they do their business,” she said. “I’m trying to figure out why this is a blunderbuss approach when everybody knows from living their normal lives, that every workplace has been affected by this save for, you know, a few here and there.”
In response, Mr Flowers, who was arguing remotely, used the analogy of terrorism.
“Now, the fact that you face that work, that that risk when you go to work doesn't make it a workplace risk,” she said.
Ms Kagan pushed back on the assertion, and noted how more than 100,000 children, though it looks like a misreading of the data since data has shown roughly 4 in every 100,000 children have been admitted with Covid, The New York Times reported.
“In those settings, the combination of the environment and the people that are in that environment, create a risk, I would think I mean, tell me if I'm wrong about this, I would think that workplace risk is about the greatest, least controllable risk with respect to Covid that any person has you know, everything else a person can control,” she said. “You can go to the baseball game or not go to the baseball game, you can decide who to go to the baseball game with, but you can't do any of that in workplaces. You have to be there.”
Ms Sotomayor noted how Covid-19 puts people out of work for long amounts of time.
“And there have been proof in certain industries like the medical industry, that when vaccines are mandated and there's no mandate here for a vaccine, there is a masking mandate, no different than there is when we tell people that if there are sparks flying in the workplace where you have workers have to be provided have to wear a mask,” she said.
“So that's no different in my mind. than this. So this is not a vaccine mandate,” she said. “There are costs and deaths and other things countervailing to the fact that there might be one to 3 per cent of workers who leave.”
The court also heard a case regarding the Biden administration’s vaccine mandate for health care workers.
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