The Supreme Court seems likely to strike down the Biden administration’s order to private employers to get their employees vaccinated (or tested weekly and wear masks). That order applies to employers with 100 or more workers. The Supreme Court seems most likely to strike it down in a 6-to-3 vote or 5-to-4 vote, with the three liberal justices dissenting.
The Supreme Court has not issued its ruling yet, but it held an oral argument today in a lawsuit challenging the order. The three liberal justices made scientifically inaccurate statements about the coronavirus during the oral argument.
The Supreme Court today considered whether it should block enforcement of the Biden administration’s COVID-19 vaccination rule for private employers until the many legal challenges to that policy are resolved. Most of the justices seemed inclined to think that the Occupational Safety and Health Administration (OSHA) had overstepped its statutory authority by demanding that companies with 100 or more employees require them to be vaccinated or wear face masks and submit to weekly virus testing.
Chief Justice John Roberts [suggested that vaccination requirements are for states and Congress to enact, not the executive branch]…Justice Neil Gorsuch agreed that the administration seems to be using various legal pretexts to create what amounts to a general vaccine mandate that Congress so far has declined to impose or authorize. “Congress has had a year to act on the question of vaccine mandates,” Gorsuch said. “It appears that the federal government is going agency by agency as a workaround.” He noted that OSHA’s rule relies on a statute that is “50 years old” and “doesn’t address the issue.” He added that “traditionally, states have had the responsibility for overseeing vaccination mandates.”
The concerns raised by Roberts, Gorsuch, and other justices echoed the points made by the plaintiffs. “OSHA typically identifies a workplace danger and then regulates this, but here the president decided to regulate a danger and then told OSHA to find a work-related basis for doing so,” said Ohio Solicitor General Benjamin Flowers. “It resulted in the vaccine mandate: a blunderbuss rule, nationwide in scope, that requires the same thing of all covered employers, regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions [that] state and local officials are far better positioned to understand and accommodate.”
The vaccination rule, which was issued on November 5, is an “emergency temporary standard” (ETS), which circumvents the customary rule-making process. An ETS, which takes effect immediately upon publication, does not provide any advance notice of the proposed rule before it goes into effect, or provide any opportunity to comment on the proposed rule. Usually, rules issued by the executive branch are proposed at least 60 days before they go into effect, so members of the public can read them and submit comments on whether they are a good idea.
But to take advantage of that rarely used emergency provision, OSHA has to show that its rule is “necessary” to protect employees from a “grave danger” in the workplace. That is more demanding than the standard for an ordinary OSHA rule, which need only be “reasonably necessary or appropriate” to address a “significant risk.” Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett emphasized that an ETS must be “necessary” to address a “grave danger,” suggesting the difference may doom the Biden administration’s rule.
OSHA’s rule includes exceptions for employees who work exclusively at home or exclusively outdoors, who are obviously not in any grave danger. But most people who work in outdoor jobs, such as landscapers and highway workers, are still covered by the mandate because they may be indoors “a little bit of time” each day, noted the challengers’ lawyer. OSHA failed to do “an industry-by-industry analysis” of COVID-19 risk, he said, and it arbitrarily exempted companies with fewer than 100 employees, even though the “grave danger” it describes does not suddenly disappear below that threshold.
A longer account of today’s oral argument before the Supreme Court can be found at this link.
As the Washington Examiner notes, the liberal justices, such as Justice Sotomayor, made some scientifically inaccurate about COVID-19:
But the worst falsehoods by far came from Sotomayor, who claimed the omicron variant is just as deadly as the delta variant and that more than 100,000 children have been hospitalized by COVID-19, with “many” on ventilators.
Where in the world is Sotomayor getting her news? Every single public health expert who has weighed in on this virus has acknowledged that omicron is far less severe than delta was, even though omicron is more contagious.
Regarding her claim about children, I have absolutely no idea where she’s getting that 100,000 figure. The current national pediatric COVID-19 census from the Department of Health and Human Services shows 3,342 children with COVID-19 in hospitals. And, as Anthony Fauci admitted last week, there is a huge difference between children hospitalized by COVID-19 and those hospitalized with COVID-19. The vast majority of pediatric cases are from children hospitalized with COVID-19, meaning they were hospitalized by something else first and happened to test positive at about that same time.
“If you look at the children [who] are hospitalized, many of them are hospitalized with COVID as opposed to because of COVID,” Fauci said last week. “What we mean by that is that if a child goes in the hospital, they automatically get tested for COVID, and they get counted as a COVID-hospitalized individual, when in fact, they may go in for a broken leg or appendicitis or something like that.”