Law & Courts

High Court Appears Skeptical of Vaccine Mandate Covering Schools in Over Half the States

By Mark Walsh — January 07, 2022 4 min read
The Supreme Court shown Friday, Jan. 7, 2022, in Washington. The Supreme Court is taking up two major Biden administration efforts to bump up the nation's vaccination rate against COVID-19 at a time of spiking coronavirus cases because of the omicron variant.
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In a case with implications for schools in more than half the states, several U.S. Supreme Court justices on Friday expressed skepticism about an emergency federal rule requiring private employers with 100 or more workers to implement either a COVID-19 vaccine mandate or testing and masking rules.

The federal rule, set to become effective Jan. 10, also applies to school districts and other public employers in 26 states and two territories that have state-level workplace safety plans approved by the federal Occupational Safety and Health Administration.

“Why isn’t this a major question that … belongs to the people’s representatives of the states and in the halls of Congress” instead of in the hands of a federal administrative agency, Justice Neil M. Gorsuch asked during the arguments in National Federation of Independent Business v. Department of Labor (No. 21A244).

Meanwhile, in a second case, the court considered a challenge to a Department of Health and Human Services emergency rule requiring vaccines for workers at public and private health-care facilities that participate in Medicare and Medicaid. That case, Biden v. Missouri (No. 21A240), has implications for a separate HHS rule requiring vaccines for teachers and other workers in the federal Head Start early-education program.

More masks on the high court bench amid the Omicron variant

Underscoring the rise of the Omicron variant of COVID, seven justices who had not worn masks during courtroom arguments in the fall donned them to take the bench on Friday. Justice Sonia Sotomayor, who has diabetes and has consistently worn a mask during courtroom arguments, participated via audio from her chambers on Friday. Only Gorsuch did not wear a mask.

Meanwhile, during the 3 hours and 40 minutes devoted to the OSHA and HHS rules, two lawyers participated by telephone.

Ohio Solicitor General Benjamin M. Flowers, arguing against the OSHA rule, tested positive for COVID after Christmas, according to news reports. Louisiana Solicitor General Elizabeth Murrill, arguing against the HHS rule, was following the Supreme Court’s COVID protocols by not appearing in person, state Attorney General Jeff Landry told reporters in the courtroom moments before the arguments began. (Landry declined to say whether Murrill had tested positive.)

Scott A. Keller, a Washington lawyer representing business groups challenging the OSHA rule, was in the courtroom to argue that “OSHA’s economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines. OSHA has never before mandated vaccines or widespread testing, much less across all industries.”

Justice Elena Kagan asked Keller, “Why isn’t this necessary to abate a grave risk?”

“This is a pandemic in which nearly a million people have died,” Kagan added. “It is by far the greatest public health danger that this country has faced in the last century. … And this is the policy that is most geared to stopping all this. There’s nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.”

U.S. Solicitor General Elizabeth B. Prelogar, defending the OSHA rule, said “COVID-19 is the deadliest pandemic in American history, and it poses a particularly acute workplace danger. Workers are getting sick and dying every day because of their exposure to the virus at work.”

Chief Justice John G. Roberts Jr. challenged Prelogar when she said Congress has spoken by granting broad authority for OSHA to promote workplace safety with its 1970 law creating the agency.

“That was 50 years ago that you’re saying Congress acted,” Roberts said. “I don’t think [it] had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem.”

Case involving Medicare and Medicaid rule may have implications for Head Start vaccine mandate

The HHS rule seemed to meet somewhat less skepticism.

“This is a spending clause case and not a general powers case,” Sotomayor said in reference to the states’ consent to participate in Medicare and Medicaid in exchange for federal funds. “And I always thought that when you’re talking about the spending clause, that the government has more power to define where it wants to spend its money.”

The chief justice said the health-care case involves provisions of federal law that authorize the HHS secretary “to ensure compliance with requirements that the secretary finds necessary in the interest of the health and safety of patients.”

“That’s very broad, and I think … they have broader authority because it’s in a spending clause provision,” Roberts said.

The Head Start program is also based on the spending clause in Article I of the U.S. Constitution. A federal judge in Louisiana last week issued a preliminary injunction against the HHS rule requiring vaccines for Head Start teachers and others in contact with children.

Arguments in both cases were unusual in that the court is considering emergency applications to block or allow the pandemic emergency measures to continue. Decisions are expected to come faster than they might from a case fully briefed and argued on the court’s regular docket.

And while the court has issued several important rulings about COVID-19 matters from its emergency docket, this was the first time it directly addressed pandemic issues in the courtroom.

Justice Amy Coney Barrett at one point asked whether the nation was in “an extended pandemic” or had moved to “an endemic.”

“New variants will emerge,” she said during the OSHA case arguments. “There might be new treatments, new vaccinations. We have boosters now, right? … So when does the emergency end? I mean, a lot of this argument has been about Congress’s failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging?”


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