Conservative Supreme Court questions vaccine mandate authority

Riley Beggin
The Detroit News

Washington — The U.S. Supreme Court's six conservative justices expressed doubt during oral arguments Friday about the Biden administration's authority to require that more than 80 million workers nationwide get a COVID vaccine or get tested regularly. 

Whether the court decides to stop or delay implementation of the administration's vaccine-or-test rule — parts of which go into effect on Monday — is expected to have sweeping implications for Michigan businesses, workers and the trajectory of the continuing coronavirus pandemic. 

Around 3.5 million Michigan residents remain unvaccinated and may be affected by the court's ruling. Oral arguments came amid a nationwide surge in COVID cases driven by the emergence of the new omicron variant of the virus, which has killed nearly 28,000 Michiganians since the beginning of the pandemic.

Under the administration's rule issued by the Department of Labor's Occupational Safety and Health Administration, workers for companies with more than 100 employees would be required to get a vaccine or pass a COVID test every week at their own cost in order to attend work, with limited exceptions.

Over the course of more than an hour Friday, lawyers for business groups and the state of Ohio argued the Biden administration's rule oversteps its powers and would lead workers to quit their jobs. 

"OSHA's economy-wide mandate would cause permanent worker displacement rippling through our national economy, which is already experiencing labor shortages and fragile supply lines," said Scott Keller, attorney for the National Federation of Independent Businesses and other business groups. "OSHA has never before mandated vaccines or widespread testing, much less across all industries."

Solicitor General Elizabeth Prelogar, meanwhile, argued that COVID-19 is "the deadliest pandemic in American history, and it poses a particularly acute workplace danger," and that OSHA has the authority to issue emergency rules in the case of such grave danger. "Workers are getting sick and dying every day because of their exposure to the virus at work."

The court's six conservative-leaning justices expressed skepticism to varying degrees over the administration's authority to issue the rule. 

Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, April 23, 2021. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.

Chief Justice John Roberts asked Keller why OSHA wouldn't "have the authority to do the best approach possible to address what you agreed is a special workplace problem?"

But he later added that it seems like the administration is trying to "work across the waterfront" by using multiple agencies to implement vaccine requirements. 

"This has been referred to, the approach, as a workaround," he said. "The idea that this is specific to particular agencies really doesn't hold much water when you're picking them off one by one."

Justices Brett Kavanaugh and Neil Gorsuch raised questions about the "major questions doctrine," implying that Congress may have more explicitly given agencies the power to mandate vaccines if the administration had authority to do so. 

The court's three liberal-leaning justices — Justices Elena Kagan, Sonia Sotomayor and Stephen Breyer — seemed to support the rule, emphasizing the unprecedented risk the pandemic poses and the exceptions that allow some flexibility in compliance for workplaces that are less dangerous.

"We are now having deaths at an unprecedented amount. Catching COVID keeps people out of the workplace for extraordinary periods of time," Sotomayor said. "There are costs and deaths and other things countervailing to the fact that there might be 1-to-3% of workers who leave."

The court is expected to rule quickly as the rule's requirement that unvaccinated workers wear masks indoors would take effect on Monday. The requirement for unvaccinated workers to undergo weekly testing wouldn't begin until Feb. 9.

Many of Michigan's leading business groups have expressed frustration with the rule, which they say will put undue burdens on businesses to implement the requirements and worsen an ongoing labor shortage. 

Small businesses have struggled amid pandemic-related restrictions, supply chain issues, rising costs and staff shortages, said Brian Calley, CEO of the Business Association of Michigan.

"Today, many small businesses report more difficulty maintaining full staff levels than at any time since they have been in existence. This vaccine and testing mandate will exacerbate the problem," he said. "The last thing small businesses need now is a mandate to make operating their businesses more difficult. We urge the Supreme Court to stay the mandate and strike down this unreasonably broad federal overreach.”

Meanwhile, labor groups have praised the rule as a necessary workplace protection against the virus.

"Steps like this that ensure our members and hardworking families are protected during the COVID-19 pandemic are just common sense," Michigan AFL-CIO Ron Bieber said in a statement when the policy was issued.

Many Republicans in Congress have also argued that President Joe Biden is overstepping his authority by issuing the mandate, including Rep. John Moolenaar of Midland, who sits on the powerful House Appropriations Committee. 

Moolenaar introduced a bill in November that would bar the Department of Labor, the Department of Health and Human Services and the Department of Education from using federal funds to administer COVID-19 vaccine requirements. The bill is co-sponsored by 33 Republicans. 

"Americans should have the right to decide if they want to take the COVID-19 vaccine, and I believe President Biden implementing his mandate through executive rule is unconstitutional," Moolenaar said in a statement Friday. "If the mandate is upheld, Michigan businesses will face higher costs for employees and hard-to-find tests, and those costs will be passed on to Michigan families and seniors."

Twitter: @rbeggin