Supreme Court signals it could BLOCK Biden’s vaccine mandates


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


Several conservative justices on the U.S. Supreme Court called into question President Joe Biden’s vaccine mandate for businesses legality. Republican officials and business requested the nation’s highest court to block the controversial policy that doesn’t seem to sit well with so many Americans.

As the case reached the top court on Friday, Chief Justice John Roberts and Justice Neil Gorsuch said that instead of a federal agency taking the lead in dealing with the pandemic, the states and congress should take the lead.

According to Justice Amy Coney Barrett, a conservative fellow justice, the workplace policy – affecting over 80 million Americans – is too broad.

The fate of Biden’s controversial mandate likely rests with Roberts, Kavanaugh, and Barrett. Compared to the other three conservative justices, they have been more open to state-level vaccine requirements.

Scott Keller appeared before the Supreme Court on Friday to argue on behalf of business groups seeking an immediate order halting a Biden administration order to impose a vaccine-or-testing requirement on the nation's big employers during the COVID-19 pandemic
Scott Keller appeared before the Supreme Court on Friday to argue on behalf of business groups seeking an immediate order halting a Biden administration order to impose a vaccine-or-testing requirement on the nation’s big employers during the COVID-19 pandemic

Currently, the 9 members of the supreme court consists of only three liberal justices, with Kavanaugh, Barrett, and Gorsuch all appointed by the former White House president, Donald Trump.

Barrett and Kavanaugh asked Elizabeth Prelogar, the administration’s top Supreme Court lawyer, tough questions.

The court heard testimony from Republican states and business leaders who say Biden’s mandate about businesses with over 100 employees overstepped federal authority.

There was support for the employer rule by three liberal justices. According to Elena Kagan, officials have demonstrated ‘quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.’

Breyer said he was unable to accept that it was in the ‘public interest’ to put that rule on hold. He cited the 750,000 new COVID cases this week that had hospitals busting at the seams.

Nevertheless, Roberts asked Prelogar if Occupational Safety and Health Administration was empowered to introduce the mandate under the 1970 law that established it.

‘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,’ he said in reference to the 1918 pandemic.

‘This is something the federal government has never done before,’ Roberts added, casting doubt on the administration’s argument that a half-century-established law, the Occupational Safety and Health Act, confers such broad authority.

As the nation is gripped by the latest wave of infections, triggered by the highly contagious Omicron variant, the court heard arguments.

As the Ohio solicitor general, Benjamin Flowers, asserted that the mandates were formulated when another, more dangerous variant – Delta – was the most prevalent in the state.

In a statement, Justice Sonia Sotamayor took issue with his way of explaining the pandemic.

‘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.

A partial ruling could come in record time, as the business mandate is due to come into force on Monday.

As the lower courts continue to hear cases, the justices have been asked to order an emergency block.

Friday was a clear example of the impact of the pandemic. There was a court hearing held in a building that has been closed to the public for almost two years and two lawyers tested positive for COVID-19 and had to deliver their arguments remotely.

Flowers delivered his 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,’ according to the statement from Reuters.

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

In addition, the Louisiana Solicitor General Liz Murrill was expected to present her argument remotely ‘in accordance with COVID protocols,’ according to her office.

Sotomayor sat in on the hearing from her chambers. She has suffered from diabetes since childhood.

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.

However, opponents say the federal government has imposed requirements not authorized by Congress and has exceeded its powers.

Asked whether there was an effort underway by the White House to find a ‘workaround,’ Justice Roberts asked whether it was going to utilize an agency that protects the workforce.

The White House Chief of Staff’s infamous tweet last Friday implied that workplace mandates were ‘workarounds’, a means of imposing comprehensive requirements that were not acceptable on the general population.

‘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,’ he inquired to Solicitor General Elizabeth Prelogar.

According to her response, Occupational Safety and Health Administration was acting for the safety of the workers and not for any other reason.

According to the White House, the mandates will prevent the deaths of thousands of Americans and will strengthen the international economy by protecting people from the most devastating effects of the pandemic.

Klain sparked controversy in September when he retweeted a quote from an MSNBC anchor who claimed that OSHA’s mandate – which would impact more than 80 million people – was a backdoor strategy to force vaccines on the public.

The retweet ultimately played a crucial role in an appeals court ruling to keep a block on the mandate – and ultimately brought the policy to the Supreme Court.

Liberal justices on the Supreme Court pointed out that the pandemic was a historic one and that it had caused a large number of deaths.

When Ohio Solicitor General Benjamin Flowers said that states may be entitled to mandate businesses, Justice Sonia Sotomayor noticed an apparent contradiction.

‘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.’

He replied: ‘The federal government has no police power.’

During her remarks, Sotomayor interrupted to point out: ‘Oh, it does have power with respect to protecting the health and safety of workers.’

In Flower’s opinion, that was the equivalent of police power.

In a statement, Justice Elena Kagan expressed skepticism over the notion that the administration had no right to impose the mandate.

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

In an exchange of questions with Scott Keller, who represented business associations against the mandate, the question was also asked why a stay should be granted 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. Friday’s cases for the first time test the federal government’s authority to issue vaccine mandates.

According to U.S. solicitor general Prelogar, such an action is central to 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.’

As part of the nation’s COVID-19 response, the White House pointed to two OSHA and CMS initiatives as ‘critical’.

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

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

These mandates stymie economic recovery, say business groups.

According to Alfredo Ortiz, president of Job Creators Network, one of the groups which challenged the regulation, stated: ‘The Supreme Court can defend small businesses nationwide by following precedent and immediately staying the Biden administration’s employer vaccine mandate.

‘This unprecedented government overreach would impose new costs on businesses at the worst possible time and exacerbate the labor shortage and supply chain crisis.’

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