US Supreme Court conservatives question Biden vaccine policy

President's vaccine-or-test mandate faces legal challenge as Omicron surge takes hold

A protester stands outside the US Supreme Court as it hears arguments against the Biden administration's nationwide vaccine-or-testing Covid-19 mandates. Reuters

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The US Supreme Court cast doubt on the linchpin of President Joe Biden’s vaccination push amid a Covid-19 surge, questioning whether the Occupational Safety and Health Administration (OSHA) had authority to require that 80 million workers receive shots or take regular tests.

In a special argument session on Friday, the court’s conservative justices voiced scepticism about the rule, which business groups and Republican-led states say exceeds the workplace-safety agency’s authority.

The pandemic “sounds like the sort of thing that states will be responding to or should be and that Congress should be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone”, Chief Justice John Roberts said.

The initiative represents the heart of Mr Biden’s plan to increase the country’s vaccination rate as the Omicron variant propels a spike in cases. The US Centres for Disease Control and Prevention (CDC) says only 62 per cent of the country is fully vaccinated and only 35 per cent of people have received a booster shot.

The court is also considering a separate administration rule that would require shots for workers in nursing homes and other facilities that receive Medicare and Medicaid payments from the government. The OSHA rule requires employers with 100 or more workers make them be vaccinated or be tested regularly, potentially at their own expense.

The rule is set to kick in on Monday, though OSHA has said it will not issue citations to employers who are trying in good faith to comply with the testing requirements until at least February 9. The court could rule in a matter of days.

The showdown marks the first time in decades the court has heard arguments on emergency requests for a stay without ordering the full briefing that occurs when cases are heard on the merits.

Two lawyers opposing the Biden rules, Ohio Solicitor General Benjamin Flowers and Louisiana Solicitor General Elizabeth Murrill, argued by phone after being tested for Covid-19.

A spokeswoman for Mr Flowers said he tested positive after Christmas and the virus was detected when he was tested again on Thursday.

A spokesman for Ms Murrill said she was arguing remotely “in accordance with the Covid protocols of the court”. The court requires arguing lawyers to take a PCR test the day before a session and to participate by telephone in the event of a positive test.

Justice Sonia Sotomayor took part in the arguments from her office, rather than the courtroom. Ms Sotomayor, who has type 1 diabetes, has worn a mask during previous arguments. A Supreme Court spokesman said this week that all nine justices have received booster shots.

The court has been receptive to targeted vaccine mandates issued by state and local officials, repeatedly rejecting religious objections. But the latest cases involve very different legal issues: the power of federal agencies whose governing statutes do not explicitly authorise vaccine requirements.

“Traditionally, states have had the responsibility for overseeing vaccination mandates,” said Justice Neil Gorsuch, citing his own rejection on December 21 to a challenge to New Mexico’s shot requirement for healthcare workers.

“Congress has had a year to act on the question of vaccine mandates already,” Mr Gorsuch said. “As the chief justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act.”

The court’s liberals suggested they were exasperated at the suggestion that federal agencies could not broadly respond to a pandemic that has killed more than 800,000 people in the country.

“It is by far the greatest public health danger that this country has faced in the last century,” Justice Elena Kagan said. “More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here. I’m just sort of stating facts.”

Twenty-six business groups led by the National Federation of Independent Business contend that OSHA did not meet that test and that Congress did not provide the clear authorisation the court’s precedents require for such a sweeping mandate.

Ohio is leading a separate group of 27 states challenging the OSHA rule. They say the rule interferes with states’ prerogative to develop their own vaccine policies.

OSHA estimated before the Omicron variant emerged that the standard would save more than 6,500 worker lives over six months.