Today the Supreme Court heard over three hours of oral arguments on two of the Biden administration’s COVID-19 vaccine mandates.
In the first case, state governments and businesses are asking the Court to stay an Occupational Safety and Health Administration (OSHA) mandate that businesses with 100 or more employees ensure their workers are vaccinated or require unvaccinated workers to wear masks and test weekly.
In the second, the government is asking the Court to lift a stay imposed in 24 states by two lower federal courts on a mandate requiring health care facilities that accept Medicare and Medicaid funding to vaccinate their staff against COVID-19 or lose funding from the U.S. Centers for Medicare and Medicaid Services (CMS), which administers the two health care programs. Unlike the mandate for private employers, this one does not give employees a test and mask option.
There were common themes emphasized in both arguments. Liberal Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor repeatedly stressed that the government was addressing an unprecedented public health emergency that is currently causing many thousands of new cases and hospitalizations. They claimed that staying either mandate would cost lives. The conservative justices, in contrast, questioned the limits of the authority that Congress had delegated to the federal agencies and wondered why Congress had not enacted legislation mandating vaccination if that is what they desired.
It is always difficult to predict how the Court will eventually rule, but the tenor of the argument suggested the Court will likely stay the OSHA private employer mandate. A majority seemed skeptical that OSHA had met the onerous statutory requirements to issue an Emergency Temporary Standard mandating COVID-19 vaccines without normal agency rulemaking. They also did not believe that Congress had delegated the authority in the Occupational Safety and Health Act for OSHA to make such a broad requirement.
A key question mentioned by both the conservative and liberal justices was who (which level of government) gets to decide to impose such a mandate. The liberals thought the federal government has the power. But the conservatives, who comprise a majority of the Court, wondered why this isn’t a matter for the states, which have traditionally had and exercised police powers to protect public health and safety, including requiring vaccinations. Chief Justice Roberts suggested the Biden administration is trying to “work around” its lack of authority to impose a broad mandate and instead is imposing mandates “agency by agency” as if the pandemic posed a specific danger to each one.
The outcome in the second case involving the CMS mandate for health care workers is harder to predict. The mandate relies on the government’s constitutional spending power and established ability to condition receipt of funds on fulfilling certain requirements. CMS routinely places conditions on the receipt of Medicare and Medicaid funds. The conservatives noted that CMS had never imposed anything like a vaccine mandate before and questioned whether the statutory language allowing requirements to protect patients’ health and safety was broad enough to require vaccines.
The state plaintiffs opposing the mandate repeatedly stressed that it would lead many health care providers to quit and thereby endanger the provision of health care in rural areas. But the conservative justices did not pursue this argument and seemed less animated in their opposition to the CMS mandate than they had been to the OSHA mandate.
A decision on both stays seems likely within the week. Meanwhile, a third Biden vaccine mandate, for federal contractors, remains on hold nationwide after a federal court in Georgia stayed it.