The two visions of pandemic America have arrived at the US Supreme Court.
To the Biden administration, this is a life-or-death moment. Administration lawyers defending a new workplace vaccination requirement highlight the human toll of the deadly virus, a collapsing health care system and the “grave danger” of Covid-19 transmission among workers.
Businesses and states that brought the lawsuits to be heard at the high court on Friday say the Biden administration’s vaccine-or-test regulation for large employers would cause workers to quit and profits to plunge. The challengers stress the cost to the national economy and to individual liberty.
The dueling assertions offer more than echoes of today’s blue-and-red state politics. They reflect a key issue at this stage of the dispute over the authority of the Occupational Safety and Health Administration to protect workers against the Covid-19 virus, now as the highly infectious Omicron variant rages.
A key question for this rushed set of hearings is which side would be injured more if the vaccination requirement were imposed or, alternatively, blocked, while litigation on the full merits of the regulation proceeds.
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The disputes over OSHA’s vaccine rule for companies with 100 or more workers will be heard along with separate fast-tracked challenges to a federal vaccine requirement for health care facilities serving Medicare and Medicaid patients.
Laced into the written filings to the justices in the OSHA cases are clashing visions of how bad things are.
The administration strikes an ominous tone, emphasizing the deadliest pandemic in the nation’s history. The rules requiring vaccines or testing would save thousands of lives and would prevent hundreds of thousands of hospitalizations “in the next six months alone.”
The challengers try to avoid minimizing the Covid-19 death toll, instead stressing that people face risks from all the routines of life. Asserting that individual workers face disparate risks, some far from a “grave danger,” the states write, “After all, even many overwhelmingly safe substances, like peanut butter and latex, present an especially high risk to some subset of individuals.”
In the same vein, medical groups backing the administration focus on the 830,000 Americans already killed, while advocates on the other side raise doubts about the usefulness of vaccines and extol people who decline the shot, whether for religious, medical or other personal reasons.
The nine justices come to this series of disputes over vaccination policy from their own vantage points. They were among the first eligible for shots when the vaccine became available, and the court said in March 2021 that all were “fully vaccinated.” Tuesday, the court said that all nine have received booster shots.
At the court building, the justices have instituted mask and testing protocols. In the courtroom, law clerks, journalists and the other limited spectators wear high-grade N95 masks. Among the nine justices on the elevated bench, only Sonia Sotomayor, who has spoken openly about her diabetes, has so far worn a mask during court proceedings.
But on the law, cases related to pandemic regulations have produced mixed results since the early months of 2020, when the justices reviewed mail-in ballot and other election-season precautions, as well as church and synagogue capacity restrictions. They have blocked several government health measures, most significantly a federal moratorium on evictions last August, but have let stand some state vaccine and mask requirements.
In the decision against the eviction moratorium, the Supreme Court said that “it strains credulity to believe” that federal law gives the Centers for Disease Control and Prevention “the sweeping authority it asserts.”
The new OSHA standard, which the challengers say would cover 84 million workers, could trigger the anti-regulatory sentiment of the court majority, bolstered by three appointees of former President Donald Trump.
The National Federation of Independent Business and other business and state challengers say Congress has not clearly authorized the power OSHA claims for vaccines and testing. They contend that the policy raises a “major question” of economic significance that should be left to Congress.
But Department of Justice lawyers, defending the Biden initiative, contend the OSHA standard flows directly from its statutory authority to protect workers from viruses that present “a grave danger.” They stress that the costs of blocking it could be “enormous” to people’s health and workers would have options. Those who refuse to get fully vaccinated would be required to wear masks and show proof of negative COVID-19 tests once a week.
“(I)n charging OSHA with protecting the safety and health of workers in all businesses that affect interstate commerce,” US Solicitor General Elizabeth Prelogar, who will argue Friday, wrote, “Congress already made the judgment that ensuring safe workplaces might require substantial regulations that apply nationwide and carry significant compliance costs. No clearer statement is necessary.”
The National Federation of Independent Business contends the OSHA rule “attempts for the first time” to cover a virus that’s everywhere in daily life, not just on the job. A lower US appellate court that sided with the administration last month rejected the contention, saying that judges have upheld OSHA’s authority to regulate hazards that extend into society but present a higher risk in the workplace.
The business federation, which will be represented by lawyer Scott Keller on Friday, focuses on the costs to the national economy, arguing that unless the Supreme Court prevents the new standard from taking effect next Monday, America’s businesses will immediately incur billions of dollars in compliance costs and lose workers.
“The OSHA requirement,” Keller writes, “will irreparably injure the very businesses that Americans have counted on to widely distribute COVID-19 vaccines and protective equipment to save lives — and to keep them fed, clothed, and sustained during this now two-year-long pandemic.”
Officials from 27 states, who will be represented by Ohio Solicitor General Benjamin Flowers, opened their filing dramatically: “Cicero famously observed that, in times of war, the laws fall silent. Perhaps that was true of the Roman system. It is not true of ours.” Invoking phrasing from the justices’ ruling against the Biden administration moratorium on landlord evictions, Flowers added, “In ‘our system,’ the government may not ‘act unlawfully’ even in extraordinary times.”
