Conservative Majority on Supreme Court Appears Skeptical of Biden’s Virus Plan

WASHINGTON -- The conservative majority of the Supreme Court seemed skeptical Friday that the Biden administration had the legal power to require large employers to have workers vaccinated against coronavirus and undergo regular testing. During a two-hour debate, they stated that a federal workplace safety law did not give legal authority for this sweeping emergency measure.

Chief Justice John G. Roberts Jr., and Justice Neil M. Gorsuch stated that the federal agency could not address the pandemic, but the states and Congress were better positioned to do so. Justice Amy Coney Barrett stated that the challenged regulation seemed to cover too many large employers.

Brett M. Kavanaugh and Justice Gorsuch suggested that the governing statute hadn't authorized the agency to impose this mandate clearly enough given the political and economic stakes.

Three of the more liberal justices at the court said that the mandate was necessary to address the public health crisis.

Justice Elena Kagan stated, "We know that the best way to stop spread of disease is to get people vaccinated."

Justice Stephen G. Breyer stated that he believed it was in the public's best interest to end these vaccinations.

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The pandemic caused some of the argument participants to be absent from the courtroom. Justice Sonia Sotomayor was the only court member to wear a mask since October when the justices returned in court. She participated remotely from her chambers.

The court announced that two of the lawyers, Benjamin M. Flowers (the solicitor general in Ohio) and Elizabeth Murrill (the solicitor general in Louisiana), would be arguing by telephone. However, it didn't give any reason. According to court protocols, lawyers must be tested for the virus. Protocols state that an arguing lawyer who has been positive for the virus will not be allowed to argue in person but will be expected to connect to the courtroom remotely via telephone.

A court spokeswoman stated that all justices have been fully vaccinated.

Two challenges to the response of the administration to the pandemic are being heard by the court.

The first argument dealt with a measure that targeted businesses with 100 employees or more. It would have imposed a vaccine-or testing mandate on more than 8 million workers. According to the administration, 22 million people would be vaccinated. This rule could also prevent 250,000 hospitalizations.

Second argument, which began shortly after noon, concerns a requirement that all workers in hospitals and other health care facilities participating in Medicare and Medicaid be vaccinated for the coronavirus. According to the administration, this requirement would impact more than 17 millions workers and "save hundreds, if not thousands, of lives each month".

In a range of situations, the Supreme Court has upheld mandates for state vaccinations against constitutional challenges. These cases are not the same as the others, and mainly address the question of whether Congress authorized the executive branch's implementation.

Answers will depend on the language used in the statutes, and whether proper procedures were followed by the administration when issuing the requirements.

The vaccination-or-testing requirement for large employers was issued in November by the Labor Department's Occupational Safety and Health Administration, or OSHA.

Employers can give workers the option of having their vaccines tested every week, but they don't have to pay for it. This rule does not apply to employees who have religious objections or who aren't in close contact with others at work, such as those who work exclusively outside or at home.

OSHA is authorized to issue workplace safety emergency rules under a 1970 law if it can prove that workers are in grave danger or that the rule is needed.

States, businesses, and others challenged the measure at appeals courts across the country. A unanimous three-judge panel of U.S. Court of Appeals, Fifth Circuit, New Orleans ruled in favor of some of them, effectively blocking the measure.

After the challenges were consolidated at the U.S. Court of Appeals, Sixth Circuit in Cincinnati, a three-judge panel split up the measure.

Judge Jane B. Stranch, who wrote for the majority, stated that "the record establishes the fact that Covid-19 continues to spread, mutate and kill and block safe return of American workers from their jobs." OSHA must be able and able to respond quickly to new dangers in order to protect workers.

The Coronavirus Pandemic: What You Need to Know

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Global surge. Although the coronavirus is spreading faster than ever before, Omicron appears to be milder than other variants. The latest outbreak is leading to an increase in hospitalizations and the need for lifesaving treatment.

Boosters. The C.D.C. The C.D.C. endorsed boosters from Pfizer for children aged 12-17 years old and stated that being up-to-date on vaccines now includes a booster. Scientists are expressing concern that "forever-boosting" may not be a long-term viable strategy.

Testing. New research suggests that Omicron cases may not be detected by two commonly used at-home antigen test kits. A White House official announced that insurers will reimburse the cost of quick at-home tests starting next week.

Mandates Under Review Today: The Supreme Court will hear oral arguments about two important policies of the Biden administration that aim to increase coronavirus vaccination rates. They are the vaccine-or-testing mandate for large employers and the vaccination requirement for certain health care workers. Here is a breakdown of all the arguments.

All over the globe. China has a 13-million-strong population that is being held over a few cases. This raises questions about the sustainability of China's zero-Covid policy. France's President Emmanuel Macron was criticised for suggesting that the government should make life difficult for the unvaccinated.

Safeguarding yourself. Are you concerned about spreading Covid virus? You can help keep yourself and others safe by following these guidelines on how to perform at-home virus testing (if they are available). If you are positive for coronavirus, here's what you should do.

Joan L. Larsen, Judge of the Distinction, stated that the administration was "likely lacking congressional authority" in imposing the vaccine-or testing requirement.

She wrote that the mandate was aimed at protecting unvaccinated people from making their own decisions. "Vaccines can be freely obtained, and anyone may choose to take precautions."

The Supreme Court case National Federation of Independent Business against Department of Labor (No. 21A244, the challengers claimed that the regulation didn't address a workplace issue, and therefore exceeded the agency’s legal authority. In a brief, lawyers from 26 states and Ohio stated that Covid-19 was not an occupational risk OSHA could regulate.

They also stated that agencies wanting to issue regulations on "major issues" with broad economic and political implications must have clear congressional authorization.

Biden v. Missouri (No. 21A240 is a regulation that was issued in November and requires health care workers who work at facilities receiving federal money under Medicare or Medicaid to be vaccinated against coronavirus, unless they are granted a religious or medical exemption.

Republican-led states challenged the regulation and obtained injunctions to stop it from covering approximately half the country. The injunctions were stayed by two federal appeals courts in New Orleans and St. Louis while appeals progressed.

In Atlanta, a third federal appeals court sided with Biden's administration. "Health care workers have always been required to get inoculations against infectious diseases such as rubella, measles and other," Judges Robin S. Rosenbaum, and Jill A. Pryor wrote to a three-judge panel. "Required vaccination is a common-sense measure to prevent health care workers, whose job is to improve patients’ health, from getting sicker."

Biden's administration claimed that a federal statute granted it broad authority to issue regulations regarding the safety and health of patients in facilities that receive federal funds. The statute grants the Secretary of the Department of Health and Human Services broad authority to issue regulations to ensure "efficient administration" of Medicare and Medicaid programs. Parts of the statute relating to different types of facilities generally allow the secretary to impose requirements to protect the safety and health of patients.

Ms. Prelogar stated in a Supreme Court brief that "it is hard to imagine a more fundamental health and safety condition than a requirement for workers at hospitals, nursing home and other medical facilities to take the action that most effectively prevents the transmission of a deadly disease to vulnerable patients."

Lawyers for Missouri and other states responded that the "sweeping, unprecedented mandate for vaccines for health care workers threatens create a crisis for rural health care facilities in America."

They wrote that the mandate would have forced millions of workers to make a choice between losing their jobs and complying with an illegal federal mandate. They added that if a judge had not issued an injunction, then "last year's heroes in health care would have been this year's unemployed."