Justices to consider whether Biden administration can enforce rules for private employers and healthcare workers
THE WALL STREET JOURNAL // JAN. 6, 2022
The Supreme Court will hold a special session Friday to consider whether the Biden administration can enforce vaccine-and-testing rules for large private employersand a vaccine mandate for most healthcare workers.
The issues come to the court on an emergency basis during a record increase in U.S. Covid-19 infections. In a departure from its usual procedures, the court is hearing arguments on cases that haven’t been fully aired in lower courts.
Technically, the justices—all of whom, according to a court spokeswoman, are fully vaccinated and have received booster shots—don’t have to issue a definitive decision on whether the administration’s vaccine rules are lawful. Instead, they are considering whether President Biden’s team can implement them now while more detailed litigation continues. The cases, however, will require the justices to assess whether the White House has credible claims that it stayed within legal boundaries as it has sought to use longstanding laws to implement aggressive rules in the name of public health.
The answer is likely to decide the fate of the administration’s current approach to a virus that has killed more than 800,000 Americans and infected more than 50 million. Moreover, the court’s decisions could reset the public-health playbook for years to come.
The Supreme Court’s conservative majority is skeptical of broad claims of federal power and has been considering arguments for reining it in, said Michael Greenberger, a law professor and director of the Center for Health and Homeland Security at the University of Maryland.
But with the vaccine cases, the justices “are walking into the jaws of the pandemic,” he said. “And there may be enough justices who would worry that pulling back [the mandates] in the middle of the pandemic is a dangerous thing to do.”
Mr. Biden in September introduced several interrelated mandates on vaccination against Covid-19. The private-employer and healthcare rules, both formally issued in November, are coming before the justices while other requirements, including vaccination mandates for federal workers and contractors who do business with the federal government, remain in lower courts.
The regulations for large employers, issued by the Occupational Safety and Health Administration, require businesses with 100 or more employees to ensure that their workers are vaccinated or tested each week for Covid-19. The policy covers some 84 million workers. The administration intended the rules to go into effect in early January, but because of legal uncertainties, OSHA recently said it would give employers until Feb. 9 before fully enforcing them.
The vaccination mandate for healthcare workers comes from the Centers for Medicare and Medicaid Services, which said facilities that accept money from those programs must comply. The mandate covers more than 10 million healthcare workers.
Lower courts have blocked that mandate in half of the states, but the agency is preparing to begin implementing it this month in states where it is allowed to do so.
Long ago, the Supreme Court upheld the power of state governments to mandate vaccinations. In the 1905 case, Jacobson v. Massachusetts, the justices upheld the state’s authority to require that individuals vaccinate against smallpox. “The liberty secured by the Constitution…does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint,” Justice John Marshall Harlan wrote for the court.
In 1922, the court upheld the city of San Antonio’s power to require proof of vaccination to enroll in public school.
During the coronavirus pandemic, the justices already have turned down several challenges to orders from state officials requiring that healthcare workers and returning college students obtain vaccines.
The current legal challenges to the Biden administration’s vaccine rules covering employers and healthcare facilities are based less on their substance than their source: the executive branch of the federal government.
The challengers argue that Congress never granted the power for such mandates to the secretaries of labor and of health and human services. For support, they look to the Supreme Court’s decisions last year that terminated a moratorium on evictions ordered by the Centers for Disease Control and Prevention, on the grounds that the ban exceeded the agency’s authority.
The Supreme Court is considering emergency requests by 26 business groups and 27 states to block the vaccine-and-testing rules for private employers.
The business litigants, including trade associations representing retailers, wholesalers and transportation and energy companies, said Covid-19 vaccines “are undeniable marvels of modern medicine” that companies have promoted to their workforces. “But the reality is that tens of millions of Americans remain unpersuaded,” they said in court papers.
Companies, they said, will either have to absorb testing costs and pass them along to consumers, or make unvaccinated workers responsible, “who will quit en masse rather than suffer additional testing costs each week.”
A Kaiser Family Foundation survey in November found that 49% of employees in relevant workplaces in November opposed the federal vaccine-or-testing mandate and 49% supported it. A far higher proportion of Democrats and vaccinated employees backed the measure.
The business groups and the states, nearly all led by Republican attorneys general, argue that Congress never clearly gave OSHA the power to conscript businesses into implementing a vaccine-and-testing mandate. They also say the agency unlawfully adopted the mandate without first formally seeking input from the public.
The states separately argue that if OSHA’s mandate is permissible under federal workplace-safety law, then the regulations raise constitutional problems, because public health-and-safety initiatives are powers reserved for the states, not the federal government.
In response, the Justice Department, representing the administration, said OSHA has a clear grant of authority from Congress to ensure that all workers have safe and healthy working conditions. And the vaccine-and-testing rules raise no constitutional problems, the department said, because the federal government has the power to regulate businesses that participate in interstate commerce.
Blocking the OSHA rules “would cost many worker lives and result in thousands of worker hospitalizations—all the more so as the pandemic’s most recent surge drives case counts to new highs,” U.S. Solicitor General Elizabeth Prelogar wrote in court papers.
It was the Biden administration that filed the emergency appeals to the Supreme Court in the healthcare cases after it lost some lower-court rulings to state attorneys general who sued to challenge that mandate. There, the administration argues that it has the power to ensure that Medicare and Medicaid providers meet the needed health and safety standards to protect patients. And it said the government has clear authority to impose conditions—including vaccine requirements—on facilities that accept federal healthcare funds.
The states challenging the policy say it will exacerbate an already critical shortage of healthcare workers, particularly in rural communities.
There is no set timetable for the Supreme Court to issue its decisions, but given the time-sensitive nature of the disputes, rulings are likely in a matter of weeks, if not days.
—Anthony DeBarros contributed to this article.