President Biden’s Virus Plan Fails to Win Over Conservative Supreme Court Majority


The Supreme Court’s conservative majority appeared skeptical Friday of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The arguments within the two cases come at a time of spiking coronavirus cases due to the omicron variant, and therefore the decision Friday by seven justices to wear masks for the primary time while hearing arguments reflected the new phase of the pandemic.

Roberts and Justices Brett Kavanaugh and Amy Coney Barrett probably hold the key to the result in both cases, as they need to be more receptive to state-level vaccine requirements than the other three conservative justices. Barrett and Kavanaugh also had tough questions for Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer.

“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a half-century-established law, the Occupational Safety and Health Act, confers such broad authority.


Beginning Monday, unvaccinated employees in big companies are alleged to wear masks at work, unless the court blocks enforcement. But testing requirements and potential fines for employers don’t kick in until February.

The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere just like the degree that this one will.”

And Justice Stephen Breyer said he found it “unbelievable” that it might be within the “public interest” to place that rule on hold. He said that on Thursday there have been some 750,000 new cases within the country in which hospitals are full.

The second regulation may be a mandate that might apply to virtually all health care staff within the country. It covers health care providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities also as home health care providers. The rule has medical and non secular exemptions.

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Decisions by federal appeals courts in New Orleans and St. Louis have blocked the mandate in about half the states. The administration has said it’s taking steps to enforce it within the rest.

“I think effectively what’s at stake is whether or not these mandates are going to enter effect in the least ,” said Sean Marotta, a Washington lawyer whose clients include the American Hospital Association. The trade group isn’t involved within the Supreme lawsuits .

Administration lawyer Prelogar told the justices that COVID-19 “is the deadliest pandemic in American history and it poses a singular workplace danger.” OSHA has estimated that its emergency regulation will save 6,500 lives and stop 250,000 hospitalizations over six months.

Nearly 207 million Americans, 62.3% of the population, are fully vaccinated, and more than a third of those have received booster shots, including the nine justices.


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