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Another supreme battle at the U.S. Supreme Court today. In a special session, the justices are hearing expedited arguments in cases challenging two major Biden administration rules aimed at increasing the number of vaccinated workers. The cases are in a preliminary posture, but however the court rules will very likely signal how these issues are ultimately resolved. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: At the heart of today's argument are two new federal regulations issued to deal with the COVID pandemic, one issued by the Occupational Safety and Health Administration, OSHA. It applies to all companies that employ a hundred or more workers and requires that all workers be vaccinated or tested weekly, in addition to being masked. It's being challenged by a coalition of large and small business groups, 27 states and individuals. Among them is Brandon Trosclair, owner of 15 grocery stores in Louisiana. As he explained in a video prepared by the conservative Liberty Justice Center, which represents him...
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BRANDON TROSCLAIR: The problem here is the mandate itself. It puts a wedge between me and my staff, having to make them decide whether or not they want to get this vaccine or I can potentially have to terminate them. The other option is multiple testing.
TOTENBERG: Which costs money, in contrast to the vaccine, which is free. The second rule under scrutiny today was issued by the Centers for Medicare and Medicaid Services, CMS. It mandates vaccinations for all employees at all hospitals, nursing homes and other health care providers that receive federal funds. The only exceptions are for medical or religious reasons. Those challenging the CMS rule contend that millions of health care workers will leave their jobs rather than comply with the mandate. But the Biden administration points to studies showing that less than 1% of health care workers have left their jobs as a result of vaccine mandates. For instance, when the Houston Methodist Hospital System imposed a vaccine mandate, only 153 workers out of more than 61,000 resigned rather than comply.
Of the two rules before the Supreme Court today, the mandate for health care providers is generally considered easier to defend because the courts have long held that when the federal government funds a program like Medicare or Medicaid, it has the authority to put conditions on how the money is used to ensure that it's used wisely, efficiently and that it's not being used to expose patients to greater risks. As Case Western Reserve professor Jonathan Adler puts it...
JONATHAN ADLER: We're paying for people to get dialysis treatment. We don't want the consequence of our funding their dialysis treatment to be they get COVID.
TOTENBERG: The OSHA regulation is different from the CMS rule because it was enacted not under Congress' spending power but under Congress' power to regulate interstate commerce, a target of many current court conservatives. The OSHA statute is very broad and allows the agency to issue emergency rules when it deems them necessary to protect workers from grave danger. What's more, OSHA has previously applied its rulemaking to diseases, including HIV and hepatitis, and required employers to pay for the hepatitis B vaccine for at-risk workers. That said, it has never enacted a vaccine or test rule like this one.
Those challenging the rule note that it applies to two-thirds of the workers in the private sector. The challengers include not just businesses large and small but more than half the states, almost all of them Republican-dominated, including a dozen that have made vaccination mandates illegal. The challengers argue that the law exceeds what Congress intended in enacting OSHA, and they go further, contending that if Congress did intend to give such broad rulemaking power to the agency, it would be unconstitutional.
The Biden administration counters that under the Occupational Safety and Health statute, it was obligated to act. After all, COVID-19 has already killed more than 800,000 people in the United States and sickened 50 million more. Harvard Law professor Richard Lazarus.
RICHARD LAZARUS: I think this is a case that's a test of how truly radically conservative this court is or is not. The question is whether the Supreme Court is going to try to totally upend the ability of our national government to safeguard the nation's health and safety in midst of a global pandemic sweeping the country.
TOTENBERG: Professor Adler, however, sees this as a case that could be decided on narrow statutory grounds, based on what the statutes say and what the agency justifications for their actions are. But, he adds...
ADLER: If we hear a lot of questions about the scope of the federal government's constitutional power, that would suggest the justices view this case as a wedge into broader questions about the federal administrative state.
TOTENBERG: All of this will play out in front of a Supreme Court with all of the justices vaccinated and boosted, sitting in a near empty chamber with only reporters, council and court staff permitted to be there and in a building that is closed to the public to protect those who work there.
Nina Totenberg, NPR News, Washington.
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