Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, standing from left: Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett pose during a group photo of the Justices at the Supreme Court in Washington, DC on April 23, 2021.

Oral arguments over federal COVID-19 regulations for employers evolved into a battle between COVID-caution and limiting the authority of federal administrative agencies. The Supreme Court of the United States heard oral argument Friday morning in National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration — Ohio’s request for an emergency stay of the Biden administration’s vaccinate-or-test mandate for major employers.

The Occupational Safety and Health Administration (OSHA) issued a rule on Nov. 5, which requires employers with more than 100 employees to require either full vaccination or weekly COVID-19 tests, plus masking for unvaccinated employees. The rule is set to go into effect on January 8, and would require testing for unvaccinated employees to begin on February 9.

After several legal challenges hit the courts since the policy’s initiation, the U.S. Court of Appeals for the Fifth Circuit issued a temporary stay. The U.S. Court of Appeals for the Sixth Circuit, however, reinstated the mandate in January, and the cases have been consolidated for the justices to hear the challenges on an emergency basis.

The justices heard fast-tracked arguments Friday as to whether the mandate should stay in place while the underlying lawsuit works its way through an appeal.

Justice Elena Kagan immediately pressed attorney Scott Keller, who argued on behalf of the National Federation of Independent Business, to address vaccine requirements as an important tool to combat the pandemic. Kagan asked:

Why isn’t [OSHA’s rule] necessary to abate a grave risk? This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day.

Kagan said that OSHA’s policy “is most geared to stopping all this,” and that “there is nothing else that will perform that function better than incentivizing people strongly to vaccinate themselves.”

Keller responded that OSHA’s requirements were simply too broad, and constituted an extraordinary and overreaching use of agency power. In Kagan’s view, though, “it’s an extraordinary use of emergency power occurring during an extraordinary circumstance.”

Chief Justice John Roberts shifted the discussion to Keller’s argument that OSHA simply lacks jurisdiction for a vaccine mandate.

“This is not a workplace issue, it is an out in the world issue,” paraphrased Roberts before asking: “But how focused on the workplace does something have to be before you will say that OSHA can regulate it?”

Roberts raised the example of an assembly line in which workers sit next to each other all day.

Keller, returning to his argument that OSHA’s requirement will decimate the labor force, offered that Amtrak and the U.S. Postal Service have announced that many employees will quit in response to the rule. Roberts responded dryly, “Well just because the post office can’t do it efficiently doesn’t mean private industry can’t.”

Justice Stephen Breyer brought the conversation to the havoc caused by COVID-19, challenging Keller on his request for an emergency stay when there are ten times more cases today than at the time OSHA originally put the rule into effect.

Noting that a stay requires a balance of harms against public interest, Breyer commented incredulously, “Is that what you’re doing now— to say it’s in the public interest in this situation to stop this vaccination rule with nearly a million people… let me not exaggerate… nearly three-quarters of a million new cases every day?”

“To me, I would find that unbelievable,” Breyer added.

Justice Sonia Sotomayor also posed questions to Keller centering around the practical harms caused by COVID-19. “Catching COVID is what keeps people out of work,” remarked Sotomayor in response to Keller’s concerns about labor shortages.

Sotomayor also said that, in fact, there is no vaccination requirement in OSHA’s rule. Rather, there is a test-and-mask mandate for those who refuse to get vaccinated. Mask requirements related to COVID-19 are, argued Sotomayor, no different than OSHA’s mask mandates to avoid being hit with flying sparks in some workplaces.

Sotomayor even wondered, “Why is a human being not like a machine if it’s spewing bloodborne viruses?”

Kagan next offered a rationale for the justices staying out of this dispute altogether: OSHA is an agency full of workplace safety experts, and as a federal agency, it is politically accountable for its choices. By contrast, courts are neither. OSHA’s mandate necessarily raises public health and economic trade-offs, argued Kagan.

“Why in the world would courts decide this question?” Kagan asked.

Ohio Solicitor General Benjamin Flowers also argued against the OSHA regulation, participating in the hearing remotely due to his own COVID-19 diagnosis. Flowers, calling OSHA’s regulation a “vaccine mandate,” contended that the “sweeping rule” which applies equally to all employers goes beyond OSHA’s authority.

Responding to Flowers’ argument, Justice Kagan asked bluntly, “Do you know of any workplaces that have not fundamentally transformed themselves in the last two years?”

The conservative wing of the court largely confined their arguments to questions about OSHA’s legal authority to impose a vaccine-focused rule and the judiciary’s authority to stay that rule.

Justices Brett Kavanaugh and Neil Gorsuch each asked several questions about the “major questions doctrine” — a legal tenet whereby courts will depart from their usual hands-off policy when interpretation of administrative regulations pose questions of vast economic of political significance. Several legal experts and commentators immediately cried foul at this line of questioning as a predictable attack on administrative agency authority.

Gorsuch is asking questions about the “major questions doctrine” which is connected to the “non delegation doctrine” which I don’t understand at an expert level…
But I can tell you that “Gorsuch is doing his thing where he says executive agencies have no power”

— Elie Mystal (@ElieNYC) January 7, 2022

Justice Gorsuch’s zeal to undermine the administrative state won’t yield to mass death and disease. Morally bankrupt jurisprudence.

— Anthony Michael Kreis (@AnthonyMKreis) January 7, 2022

Justice Gorsuch goes on his usual schoolhouse rock version of Congress, agencies, etc. pic.twitter.com/vR6OyUkdZJ

— Leah Litman (@LeahLitman) January 7, 2022

Justice Samuel Alito approached the hearing with an expected skepticism toward federal administrative agencies. Saying that Keller’s argument “seems to be right,” Alito questioned the agency’s right to make a rule when vaccinated employees might not face a serious risk.

Solicitor General Elizabeth Prelogar argued on behalf of the Biden Administration. Alito asked Prelogar about the timing of OSHA’s rule, and whether SCOTUS might ask for a brief administrative stay while the justices consider the arguments. Prelogar responded that the Court would surely have the right to issue such a stay, but that it is the administration’s position that each day the rule is delayed threatens the health of thousands of Americans.

Justice Amy Coney Barrett also showcased skepticism toward administrative authority, asking Prelogar about OSHA’s ability to circumvent the usual notice-and-comment period when adopting an emergency rule, such as the vaccination rule.

Justice Alito was the only justice to raise the question of whether vaccines might pose their own risks to individuals. Prelogar answered that there is no basis to believe that these FDA-approved vaccines are unsafe or ineffective. A frustrated Alito repeated, “I’m not making that point, I’m not making that point, I’m not making that point,” before asking whether OSHA has ever imposed a safety regulation that itself posed a separate risk.

Justice Kagan countered that “regulators do risk-risk tradeoffs all the time.” Sotomayor joined the fray, once again explaining that “there is no vaccine mandate here,” as unvaccinated employees can opt to test regularly for COVID-19. To this, Alito asked about the reportedly long lines for testing.

The justices coalesced into clear camps during Friday’s arguments. The Court’s liberal wing was overtly focused on ever-worsening COVID-19 statistics and the value vaccines offer to mitigate public health risks. By contrast, the Court’s conservatives approached the matter with an arm’s-length analysis of the limitations of federal administrative power. Court watchers such as Slate‘s Mark Joseph Stern expect that even with a vote to uphold OSHA’s regulation from the chief justice, the mandate will “likely” fall at the hands of the conservative majority.

Both Kavanaugh and Barrett have tossed truly ridiculous softballs to the attorneys challenging Biden’s vaccinate-or-test mandate for employers. I think it’s exceedingly likely that the Supreme Court will invalidate the mandate. Biggest question is whether it’s 5–4 or 6–3.

— Mark Joseph Stern (@mjs_DC) January 7, 2022

Others expressed that view as far back as Sept. 2021.

[Image via ERIN SCHAFF/POOL/AFP via Getty Images]

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