The US Supreme Court heard oral arguments Friday concerning whether agencies under the Biden administration had the authority to require large employers and medical care facilities that participate in Medicare and Medicaid to mandate employee vaccinations.
The first case, National Federation of Independent Businesses (NFIB) v. Department of Labor (DOL), addresses the administration’s authority to require businesses with 100 or more employees to implement vaccine-or testing schemes. The Labor Department’s Occupational Safety and Health Administration (OSHA) relied on an act from 1970 that allows the agency to make emergency temporary standards (ETS) without going through the usual steps if the regulation is intended to prevent employees from exposure to “grave danger.” But NFIB took issue with the fact that OSHA did not follow standard notice and public comment procedures before putting forth the regulation, claiming that the sweeping nature of this regulation implicates the major questions doctrine. If the doctrine is invoked, OSHA must be able to cite to a clear and unambiguous congressional authorization to act.
The liberal justices seemed to drive home the idea that the 1970 ETS provision was created for situations exactly like this pandemic. Justice Sotomayor emphasized that the severity of the pandemic was sufficient to conclude that the mandate addresses a grave danger warranting emergency action. Justice Kagan reiterated that “no other policy will prevent sickness and death to anywhere like the degree that this one will.” Justice Breyer expressed disbelief at NFIB’s assertion that a stay on the mandate would serve the public interest in the midst of the current Omicron outbreak.
Conservative justices were reluctant to agree that agencies could mandate such schemes without express input from Congress. Chief Justice Roberts appeared hesitant to allow this broad exercise of administrative authority, claiming this move by the federal government was unprecedented. He also seemed skeptical that the mandate was closely related enough to OSHA’s jurisdiction over the workplace, given that the virus can be spread outside of a work environment. Justice Kavanaugh focused on who would have the authority to mandate vaccines if the major questions doctrine was invoked.
The second case heard by the Supreme Court today involves a similar emergency vaccination mandate issued by the Department of Health and Human Services (HHS) for healthcare facilities that participate in Medicare and Medicaid. Federal district courts in Missouri and Louisiana stayed enforcement of the policy in 24 states, so the Biden administration asked the Supreme Court to lift the stay while the issues were being decided.
Similarly to the OSHA rule, states challenged the agency’s authority to hand down this policy without notice and public comment in lieu of explicit congressional permission. The Biden administration claims that when Medicare and Medicaid were enacted, Congress gave the HHS secretary authority to condition healthcare entities’ participate in the program on their compliance with policies deemed “necessary in the interest of the health and safety of patients.”
In oral arguments, Justices Sotomayor and Kagan asserted that the vaccine requirement was not different from previous HHS rules requiring Medicare-contracted providers to sterilize tools and wear gloves because they serve the same established purpose of preventing the spread of infectious diseases. Kagan noted that Medicare and Medicaid patients were particularly vulnerable given that Medicare is reserved for patients 65 and older and Medicaid is predominantly used by low-income Americans who experience negative health outcomes associated with poverty.
Overall, the conservative justices seemed to be less skeptical of the HHS mandate than the OSHA mandate because of the clear connection between healthcare providers’ vaccination status and the potential spread to patients. Justices Kavanaugh and Gorsuch questioned why HHS has not used this authority before, for example to require flu shots. The administration responded by emphasizing the unprecedented impact presented by COVID-19.
Two of the six lawyers arguing against the mandate appeared virtually, having recently tested positive for COVID-19.
