News Update

Chief Justice Roberts hints at possible pro-mandate position

A man walks past the US Supreme Court on Friday morning.
A man walks past the US Supreme Court on Friday morning. (Samuel Corum/Getty Images)

The very fact that the Supreme Court is hearing these two disputes on such an accelerated time schedule highlights how seriously the justices are taking challenges to the Biden administration’s latest attempt to combat Covid-19.

Here’s your guide to today’s oral arguments:

What is being discussed: At issue are two set of rules issued in November. The first would impact some 80 million individuals and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations. 

What both sides are saying: Critics of the requirements, including a coalition of business groups and Republican-led states, say the government agencies exceeded their authority in issuing such sweeping mandates that could lead to massive staff shortages and billions of dollars in compliance costs. The Biden administration, on the other hand, focuses on the impact of the virus that has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.  

The justices to watch: Both disputes trigger legal questions that have often divided the justices. The dispute boils down to whether a federal agency—that is not directly accountable to the public—has broad authority to issue rules that impact millions of Americans. Conservatives, including the likes of two of former President Trump’s nominees, Brett Kavanaugh and Neil Gorsuch, have expressed reservations of agencies acting in such a way without crystal clear authorization from Congress. Look for the justices to ask a lot about the agencies’ statutory authority. They may even raise constitutional questions concerning separation of powers. Keep in mind, the justices have so far tolerated vaccine mandates issued by the states, but Friday’s cases concern federal mandates and raise different legal questions. 

The first case: First up will be veteran litigator Scott A. Keller. He is in private practice now but he served for three years as Texas’ solicitor general and is a former law clerk to retired Justice Anthony Kennedy. He is representing a coalition of business groups in National Federation of Independent Business et al. v. Department of Labor. He’ll tell the court that OSHA does not have the authority to put in place a vaccine or testing regime that will cover two-thirds of all private-sector workers. He stresses how the rule will impose substantial compliance costs on businesses that will be faced with incurring the cost of testing for millions of employees who refuse to vaccinate.   

Next up will be Ohio’s Solicitor General, Benjamin M. Flowers, representing GOP-led states. Flowers served as a law clerk for the late Justice Antonin Scalia. Look for him to stress that the federal mandate is intruding on a state’s authority to enact its own vaccination and testing requirements. 

Biden’s newly confirmed Solicitor General Elizabeth Prelogar — who has already this term been tasked with arguing a major abortion case — will stand up for 30 minutes and argue the government’s position.  

Prelogar sees the vaccine mandate differently, stressing the pandemic’s devastating impact. She may allude to the fact that so far 40 million Americans are choosing not to vaccinate which is wreaking havoc on the country and in the workplace. She will concentrate on the agency’s authority to act on an emergency basis to protect employees if they are exposed to “grave danger.” 

The second case: The second rule concerns a vaccine policy rolled out in November by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services, which sought to require the Covid-19 vaccine for certain health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid programs.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by Dec. 6 and the mandate allows for some religious and medical exemptions.  

Many believe the second case concerning a mandate that impacts fewer individuals might gain more traction with the justices. Between the two, the thinking goes, health care providers that participate in Medicaid and Medicare programs have long been subject to conditions adopted by the government. 

Because two lower courts blocked the mandate from going into effect in about half the country, the government lawyer, Principal Deputy Solicitor General Brian H. Fletcher, will argue first — urging the justices to allow it to go into effect nationwide. For a time, Fletcher served as the government’s top lawyer at the Supreme Court while Prelogar’s confirmation was pending. 

Like Prelogar, Fletcher will lean on the impact of the pandemic on the country. He will say that the Secretary of Health and Human Services has authority to protect the health and safety of Medicare and Medicaid patents many of whom are particularly vulnerable due to age and disability.  

Two different coalitions of Republican-led states are challenging the CMS mandate. 

Jesus A. Osete, Missouri’s deputy attorney general, calls the mandate “sweeping an unprecedented” in court papers and he said it would create a crisis in health care facilities in rural America because it would force “millions of workers to choose between losing their jobs or complying with an unlawful federal mandate.”  

Separately, Elizabeth Murrill, Louisiana’s solicitor general, representing a different set of states, will argue that the mandate is also unconstitutional. She is expected to say that Congress can’t simply delegate the authority to a federal agency to require vaccines for over 10 million health care workers without a clear statement of intent.  

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