Chief Justice Roberts criticizes White House for referring to Biden’s vaccine mandate as a ‘workaround’

OPINION: This article contains commentary which may reflect the author's opinion

On Friday, conservative justices questioned President Joe Biden’s vaccine requirement for businesses, as the Court heard arguments from Republican officials and businesses who want to block the policy.

Justices John Roberts and Neil Gorsuch have said that states and Congress should lead the effort to combat the pandemic, rather than a federal agency.

Amy Coney Barrett, a conservative justice, argued the workplace policy was too broad, affecting more than 80 million Americans.

GOP-led states and business leaders brought a lawsuit against the mandate for companies with 100 or more employees as an example of federal overreach.

It appears that the liberal justices sided with the Biden administration’s position that vaccinations and mandates were the best way to curb the pandemic.

Roberts, however, asked U.S. Solicitor General Elizabeth Prelogar whether the Official Safety and Health Act of 1970 authorized the Occupational Safety and Health Administration to adopt the mandate.

‘That was 50 years ago that you’re saying Congress acted. I don’t think it had COVID in mind.

‘That was almost closer to the Spanish flu than it is to today’s problem,’ Roberts said, referring to the pandemic of 1918.

Arguments were heard while the nation struggled with the latest wave of infections, spurred on by the highly infectious Omicron variant.

Ohio’s solicitor general, Benjamin Flowers, argued against the mandate because it had been formulated when a different, and more dangerous variant, the Delta variant, was the most common one spreading.

His description of the pandemic was contested by Justice Sonia Sotomayor.

‘We have more affected people in the country today than we had a year ago in January,’ she said.

‘We have hospitals that are almost at full capacity with people severely ill on ventilators.

‘We have over 100,000 children which we’ve never had before, in serious condition. And many on ventilators.’

In addition to hearing arguments for more than two hours, the justices also heard arguments on whether to block the administration’s vaccine requirement for healthcare facilities.

It was easy to see the impact of the pandemic. Two lawyers who tested positive for COVID-19 delivered their arguments remotely during the hearing, which was held in a building that has been closed to the public for almost two years.

Flowers delivered an argument by telephone, according to the Ohio attorney general’s office.

‘Ben who is vaccinated and boosted, tested positive for COVID-19 after Christmas. His symptoms were exceptionally mild and he has since fully recovered,’ the office said according to one report.

‘The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely.’

Likewise, Louisiana Solicitor General Liz Murrill will also be presenting her argument remotely, ‘in accordance to COVID protocols,’ said her office without providing any further details.

Sotomayor sat in on the hearing from her chambers. Since childhood, she has been dealing with diabetes.

The White House says the mandate will protect people from the worst consequences of the pandemic, saving thousands of lives and strengthening the economy.

However, opponents contend that Congress has not authorized the federal government to impose requirements.

In a question, Justice Roberts asked whether the White House was trying to ‘workaround’ the issue by using an agency that is tasked with protecting employees.

Roberts’s question was in reference to White House Chief of Staff Ron Klain appearing to endorse the idea that workplace mandates were ‘workarounds’ – using emergency workplace rulings to impose sweeping requirements that would not be tolerated by the general public.

‘It seems to me that the government is trying to work across the waterfront and is just going agency by agency. I mean, this has been referred to as a “workaround” and I’m wondering what it is you’re trying to work around,’ Roberts asked Prelogar.

Her response was that it was simply an issue of the Occupational Safety and Health Administration protecting the workforce.

By ensuring people are protected from the worst effects of the pandemic, the White House says these mandates will save thousands of lives and strengthen the economy.

Klain sparked controversy in September when he retweeted a comment by an MSNBC anchor suggesting that OSHA’s mandate – which will affect more than 80 million people – is a way to impose vaccinations on a large percentage of the American population.

An appeals court decision to keep the block on the mandate was influenced by the retweet – an appeals court ruling after which the policy ultimately made its way to the Supreme Court.

Liberal justices of the court emphasized the pandemic’s historical significance and its impact on lives.

Sonia Sotomayor observed that Ohio Solicitor General Benjamin Flowers seemed to contradict himself when he said states can impose mandates on businesses.

‘So it’s within the police power to protect the health and welfare of workers, you seem to be saying, the states can do it,’ she said.

‘But you’re saying the federal government can’t, even though it’s facing the same crisis in interstate commerce that states are facing within their own borders.

‘I’m not sure I understand that distinction: Why the states would have the power, but the federal government wouldn’t.’

Flowers responded: ‘The federal government has no police power.’

Sotomayor retorted as Flowers was still speaking: ‘Oh, it does have power with respect to protecting the health and safety of workers.’

Flower disagreed that such actions constitute police power.

Justice Elena Kagan, also a liberal, questioned the notion that the administration doesn’t have the right to impose the mandate.

‘This is a publicly politically accountable policy. It also has the virtue of expertise,’ Kagan said.

‘So on the one hand, the agency with their political leadership can decide or on the other hand, courts can decide.

‘Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise.

‘Why in the world would courts decide this question?’

Scott Keller, who argued against the mandate on behalf of business associations, was also asked why they wanted a stay of execution immediately.

‘The short version is as soon as businesses have to put out their plans and this takes effect, workers will quit,’ he said.

‘That itself will be a permanent worker displacement that will ripple through the national economy.’

A number of pandemic-related cases have already been heard by the Supreme Court and the court has rejected challenges to state vaccine requirements based on religious beliefs. These cases are the first to test the federal government’s authority to mandate vaccines.

Prelogar argued that this action was a central component of the Occupational Safety and Health Administration.

‘COVID-19 is the deadliest pandemic in American history, and it poses a particularly acute workplace danger,’ she said.

‘Workers are getting sick and dying every day because of their exposure to the virus at work.’

In an earlier statement, the White House called OSHA and the Centers for Medicare and Medicaid (CMS) policies ‘critical’ to the nation’s COVID-19 response.

‘The CMS healthcare rule protects vulnerable patients by requiring that covered healthcare providers get vaccinated,’ Jen Psaki said.

‘The need and the urgency for these policies is greater than ever, and we are confident in the legal authority for both policies.’

On the other side, business leaders say the mandates are harmful to economic recovery.

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