U.S. Supreme Court. Biden Business Vaccine Policy. Awaiting Supreme Court Ruling

Published in Government Relations on January 10, 2022

 (*) UPDATED January 10, 2022 – Awaiting Supreme Court Ruling

With over 100,000 Americans hospitalized for COVID-19 as a result of the highly contagious Omicron variant, the Supreme Court heard oral arguments Friday in two sets of challenges to the Biden administration’s authority to take action to combat the pandemic. In the first case, National Federation of Independent Business v. Department of Labor, the justices will consider the Biden administration’s attempt to impose a vaccine-or-test mandate for workers at large employers. In the second case, Biden v. Missouri, they considered a vaccine mandate for health care workers at facilities that receive federal funding.

The Issues:

  • Cases test presidential powers to act against pandemic
  • Shots or tests required at companies with 100-plus workers
  • Vaccines needed at facilities that take Medicare, Medicaid

Friday Summary – Oral Arguments

Conservative U.S. Supreme Court justices on Friday questioned the legality of President Joe Biden's pandemic-related vaccine-or-testing mandate for large businesses but appeared more receptive to his administration's vaccine requirement for healthcare facilities at a time of surging COVID-19 cases.

The court's nine justices, who are all vaccinated, heard more than 3-1/2 hours of arguments in two cases that test presidential powers to combat the public health emergency.  The conservative justices, who hold a 6-3 majority, signaled sympathy toward arguments by the state of Ohio and a business group that the federal workplace safety agency that issued the rule affecting businesses with at least 100 workers - a policy requiring vaccines or weekly COVID-19 tests for more than 80 million employees - overstepped its legal authority.

The challengers asked the court to block the policy before the administration begins enforcement on January 10. 

The court's conservatives suggested that the 1970 law that created the Occupational Safety and Health Administration (OSHA) did not authorize this type of broad emergency action.

They seemed more open to a separate federal vaccine requirement that states led by Missouri and Louisiana are asking the court to block nationwide. It covers an estimated 10.3 million workers at about 76,000 healthcare facilities including hospitals and nursing homes that accept money from the Medicare and Medicaid government health insurance programs for elderly, disabled and low-income Americans.

The conservative justices have shown skepticism toward sweeping actions by federal agencies in past rulings.

The three liberal justices indicated that both policies were justified during a pandemic showing no signs of abating, with an upswing in COVID-19 cases driven by the fast-spreading Omicron coronavirus variant.  Chief Justice John Roberts and fellow conservative Justices Neil Gorsuch and Brett Kavanaugh indicated that the OSHA rule could be invalid under a legal doctrine that says Congress must provide a clear statement on a specific issue in order for a federal agency to issue broad regulations on it.

The conservative justices suggested Congress or individual states would be better suited to act.  Roberts voiced doubt that the law passed by Congress establishing OSHA empowered it to take such action.

Some justices raised the possibility of the court issuing a temporary stay blocking the OSHA rule while the court decides how to proceed.

Roberts and Kavanaugh appeared more sympathetic to the Biden administration's arguments regarding the healthcare facilities mandate issued by the Centers for Medicare & Medicaid Services (CMS), the agency responsible for administering those programs.

Kavanaugh noted that private healthcare providers did not challenge the mandate that states are contesting. Conservative Justice Amy Coney Barrett suggested the government could require vaccinations in certain facilities but not others.

Gorsuch seemed skeptical of the policy as a whole, questioning whether CMS has the authority to issue a vaccine regulation because such action affects an employer's staffing decisions, which Congress has said the agency could not do as part of its Medicaid and Medicare funding requirements.

Decisions in both cases are expected quickly.  Upon the ruling, VGM will immediately distribute summaries and analysis.  

Also, please note map and chart which describes each state’s latest emergency orders and actions designed to safeguard residents during the COVID-19 pandemic, including statewide mask requirements and travel advisories.

For additional detail and background, please click here.


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