The Supreme Court heard oral argument today in two cases involving Joe Biden’s covid vaccine mandates — (1) the OSHA mandate on all private business with 100 or more employees and (2) the Department of Health and Human Services (HHS) mandate on health-care workers who participate in Medicaid and Medicare programs. The arguments lasted for roughly three-and-a-half hours.
I didn’t listen to them. However, according to the accounts I’ve read, they didn’t go well for the administration. Andy McCarthy calls his account of the argument “Tough Room.”
The Washington Post’s account is here. Its reporters found the Court skeptical of Biden’s vaccine rules for businesses but more receptive to the policy for health-care workers.
Dan McLaughlin offers this account. He sees the likely prospect of a Court divided 3-3-3. Put a sweeper behind it or a striker in front of it, and you have a serviceable soccer formation. As Supreme Court decisions go, it’s less than ideal.
The three liberals, of course, have argued aggressively and sometimes bizarrely in defense of federal power to impose a nationwide mandate via the mechanism of a workplace mandate.
Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch have been less clear on exactly how far they are willing to go, but their questions suggest that they are, as usual, skeptical of vast claims of federal authority to displace states and regulate individuals based on an administrative agency claiming sweeping powers from a vaguely worded statute.
But the center of the Court in this case is likely to be Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Each of those three seems to be thinking in more moderate terms. By “moderate” here I mean a decision that may find that OSHA has some authority in this area but cannot simply use a temporary, emergency power to sweep nationally, with little or no distinction among workplaces.
If I was a betting man, I’d guess that six justices find that OSHA has taken some steps here that exceeded its authority, but likely no more than two to four justices. . .are willing to hold that OSHA cannot, on the basis of its current, statutory authority, require any workplace to mandate vaccination.
What about HHS’s mandate for health care workers? According to the Washington Post:
[Chief Justice] Roberts and Justice Kavanaugh seemed more receptive to the argument that the administration has sway over those workers and facilities. Roberts noted the close connection between coronavirus and the risk to elderly and low-income patients treated at facilities that receive federal funds. “People already get sick when they go to the hospital, but if they go and face covid-19 concerns, well, that’s much worse,” Roberts said.
Kavanaugh wondered why the states were bringing the challenge if the rule would be such an imposition on facilities and their workers. “Where are the regulated parties complaining about the regulation?” he asked.
Meanwhile, Justice Sotomayor, the weakest link on the bench in my view, is being ridiculed for her questions/positions today. She professed not to understand “the distinction why the states would have the power [to institute a mandate such as OSHA’s], but the federal government wouldn’t.” Hint: It may have something to do with the Commerce Clause and the Tenth Amendment.
Sotomayor also reportedly claimed that implementing the vaccine requirement for businesses was necessary because “Omicron is as deadly as Delta” and “we have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.” Both assertions are false. Indeed, the New York Post points to data from the Department of Health and Human Services showing a total of 3,342 confirmed pediatric hospitalizations with COVID-19 across the US as of Friday — making the justice’s math off by a factor of nearly 30.
It doesn’t inspire confidence when jurists with the kind of power Supreme Court Justices possess are this out-to-lunch.
Fortunately, Sotomayor’s vote won’t matter. The outcomes will probably rest on how Donald Trump’s second and third appointees view the cases.