Indeed, he noted, most OSHA regulations apply only while workers are on the job, but a vaccination is permanent. Justice Samuel Alito was also dubious, describing OSHA’s interpretation as “squeezing an elephant into a mousehole.” The vaccine-or-test mandate, he said, is “fundamentally different” from anything that OSHA has done before. Solicitor General Elizabeth Prelogar, that a law passed by Congress 50 years ago giving OSHA general powers gives the agency “free rein” to issue a policy of this magnitude. It might be more appropriate for individual states to impose such a mandate, or Congress. He suggested that Congress had not specifically given OSHA the power to enact a vaccine-or-test mandate – and, indeed, OSHA had never mandated vaccines before. With the complicated balancing of public health and economic trade-offs, she suggested, administrative agencies, who have expertise in the areas that they regulate and are politically accountable, should make the decision, rather than unelected judges.īut Chief Justice John Roberts saw things differently. The question, Keller emphasized, is not what the United States is going to do about COVID-19, but instead who is going to decide what to do.įor Justice Elena Kagan, the answer to that question was simple. If Congress intended to give OSHA the power to combat COVID-19 by imposing rules like the vaccine-or-test mandate, he told the justices, it needed to do so clearly. Representing the business groups, lawyer Scott Keller warned that allowing the mandate to remain in place would cause “a massive economic shift,” resulting in “billions upon billions of non-recoverable costs” for businesses. It requires all employers with 100 or more employees – roughly two-thirds of the private sector – to compel those employees to either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work. Department of Labor, centers on the vaccine-or-test mandate issued by the Occupational Safety and Health Administration. The first case, National Federation of Independent Business v. According to Reuters, Ohio Solicitor General Benjamin Flowers contracted COVID-19 after Christmas, while Louisiana Solicitor General Elizabeth Murrill argued remotely “in accordance with COVID protocols,” which require arguing attorneys who test positive for COVID to argue by telephone. In addition, for the first time since the court’s return to in-person arguments, two of the six lawyers participated by phone. Sotomayor, who has lifelong diabetes that puts her at higher risk from COVID-19, did not take the bench at all she instead opted to participate in Friday’s arguments remotely. That was a sharp departure from prior in-person arguments during the pandemic, when Justice Sonia Sotomayor has been the only justice wearing a mask. When eight justices took the bench, all but one of them – Justice Neil Gorsuch – wore masks. In the second case, which lasted for roughly an hour and a half, the justices were more receptive to the administration’s efforts to impose a vaccine mandate for health care workers at facilities that receive federal funding.īoth cases came to the Supreme Court last month on an emergency basis and, in an unusual move, the justices opted to fast-track the cases for oral argument on the question whether the mandates can remain in place while challenges to their legality continue in the lower courts.Įven beyond the subject matter of the arguments themselves, the specter of COVID-19 loomed over the courtroom from the outset. For over two hours of debate, the justices were skeptical of the administration’s attempt to impose a vaccine-or-test mandate for workers at large employers. The Supreme Court heard oral argument on Friday in two sets of challenges to the Biden administration’s authority to combat the COVID-19 pandemic.
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