The U.S. Supreme Court heard oral arguments on January 7th regarding two Biden administration COVID-19 mandates. One case arose from a challenge to a vaccine-or-test-weekly mandate imposed on private-sector employers with 100 or more employees. This mandate was issued in the form of an “emergency” rule by the Occupational Safety and Health Administration (OSHA). The other case focused on a vaccination requirement imposed by the Department of Health and Human Services for healthcare workers at health facilities participating in the Medicare and Medicaid programs.
The Biden mandate that drew the most skepticism in varying degrees from the Supreme Court’s six conservative-leaning justices is the OSHA private business vaccine-or-test mandate. There appeared to be less inclination on their part to strike down the health care workers vaccine mandate. The three leftist justices – Sonia Sotomayor, Stephen Breyer, and Elena Kagan – expressed full support for the Biden administration’s mandates in both instances.
The conservative justices expressed concern during the portion of the oral arguments devoted to OSHA’s emergency mandate order about whether there was proper legal authority for OSHA’s action. They raised questions regarding the implications for the separation of powers between the executive and legislative branches of the federal government. They also inquired into whether OSHA had intruded on the states’ ability to exercise their constitutionally-reserved police powers to protect the general welfare and health of their own residents.
The trio of leftist justices defended the OSHA private business vaccine-or-test mandate largely on public policy grounds. Reaching, by hook or crook, what they felt was the right policy outcome to protect the public against the historic COVID-19 pandemic was all that mattered to them.
The first key issue involving the private sector mandate raised by a number of the more conservative justices revolved around who has the legal authority to issue such a mandate. State and local governments traditionally issue and enforce vaccine mandates under the police powers left to the states by the Constitution. “This is something that the federal government has never done before,” Chief Justice John Roberts said.
Second, assuming the federal government has the constitutional authority to impose a vaccine-or-test mandate on private businesses, several justices questioned during oral argument whether OSHA itself had the constitutional and statutory authority to issue its broad emergency order.
Chief Justice Roberts called OSHA’s mandate “a workaround” by an executive agency issued in reaction to congressional inaction.
Justices Neil Gorsuch and Brett Kavanaugh in particular raised concerns that the 50-year-old statute relied upon by OSHA as the legal underpinning for its emergency order was too vague for that purpose. They expressed doubts as to whether the statute can be reasonably interpreted to support a unilateral executive agency mandate that carries such far-reaching economic and political impacts in the absence of specific congressional authorization.
Justice Samuel Alito used more colloquial language in describing OSHA’s interpretation of its powers as “squeezing an elephant into a mousehole.” He also noted that while most OSHA regulations apply only while workers are on the job in the workplace, once a person receives a vaccine it remains in that person’s body 24/7.
Third, both Justice Amy Coney Barrett and Chief Justice Roberts questioned why OSHA issued such a broad mandate covering so many types of businesses, rather than issuing an emergency order targeting only high-risk workplaces where people by necessity are working very close together.
Fourth, several justices questioned whether OSHA had met the Emergency Temporary Standard (ETS) of the Occupational Safety and Health Act in determining that its emergency order was “necessary” to protect workers from a “grave danger from exposure” to the kinds of “hazards” that Congress had in mind. OSHA has not used its ETS authority previously to deal with such highly infectious and lethal diseases as the flu.
“When does the emergency end?” Justice Barrett asked.
I mean, a lot of this argument has been about Congress’s failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging? And when, when must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way, which doesn’t afford people, the voice in the process that there (sic) are otherwise entitled to?
The Biden administration has argued that the OSHA mandate allows weekly testing and masks to be used for workers who resist being vaccinated. However, testing is not a realistic option at the present time due to the severe shortage of testing resources. The Biden administration’s claims of a COVID-19 pandemic emergency are belied by its inexcusable foot dragging in ensuring that all Americans who need or want to be quickly tested for the virus are able to get tested.
The three leftist Supreme Court justices brushed aside all of these concerns. They showed little interest in reviewing whether the appropriate legal process was used to reach a far-reaching policy decision with such a significant impact on so many people. They appeared indifferent to ensuring the preservation of the constitutional scheme of checks and balances on federal executive power, and to upholding the Constitution’s federalist system of government. Along the way, Justices Sotomayor and Breyer misrepresented basic facts regarding the current state of the COVID-19 pandemic.
Justice Sotomayor, for example, falsely claimed that “Omicron is as deadly as Delta.” Not so at all, say the experts. Sotomayor was just getting started with her misinformation during the oral arguments.
“We have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators,” Sotomayor declared. Presumably, she was equating children with a “serious” condition with those children who were hospitalized, given her reference to ventilators. Justice Sotomayor was way off the real number of 3,342 confirmed pediatric hospitalizations across the country with COVID-19 as of the day of the oral arguments, according to the Department of Health and Human Services (“HHS”). And she neglected to acknowledge the distinct possibility that a number of the children tested positive for COVID-19 were hospitalized for unrelated reasons.
Justice Sotomayor even earned four “Pinocchios” from the Washington Post for this whopper.
Justice Breyer claimed that U.S. hospitals are “full almost to the point of maximum.” Also not true. According to HHS data, 78.22 percent of inpatient beds are currently in use by the hospitals submitting information to HHS. 18.28 percent of inpatient beds are in use specifically for COVID-19.
The leftist justices are entitled to their opinions but not to their own facts. And if the Supreme Court ends up making a decision on this matter that doesn’t adhere to the rule of law under the Constitution, America will face a precarious crisis as a free nation.
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