Supreme Court's conservatives cast cloud over vaccine-or-test mandate for businesses Justices seemed more open to the vaccine mandate for almost all workers at hospitals, nursing homes, and other medical providers receiving federal Medicare and Medicaid funds.


Supreme Court's conservatives cast cloud over vaccine-or-test mandate for businesses

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At the U.S. Supreme Court today, the conservative supermajority seemed ready to invalidate one of President Biden's vaccine mandates. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: At issue in the nearly four-hour argument were two regulations, one that imposes a vaccine mandate for all workers at hospitals, nursing homes and other medical providers that receive federal Medicare and Medicaid funds. The other is a separate vaccine or test mandate for private sector companies that employ 100 or more workers. But even as the justices debated some pretty dry-sounding statutory and procedural issues, the pandemic itself crept unalterably into the courtroom.

Two of the lawyers challenging the Biden administration rules made their argument via telephone because they have COVID. And Justice Sotomayor, a lifelong diabetic, was not in the courtroom, choosing instead to participate from her chambers. In the first case, the vaccine or test mandate for most private sector workers - that ran into a buzz saw right off the bat. Chief Justice Roberts immediately cast doubt on the regulation issued by the Occupational Safety and Health Administration, OSHA.


JOHN ROBERTS: This is something that the federal government has never done before, right?

TOTENBERG: Justices Gorsuch, Kavanaugh, Thomas and Alito indicated even more strongly that in their view, the regulation at minimum went too far. The OSHA statute contains language giving the agency broad powers to enact emergency regulations when it deems it necessary to protect workers from grave danger. But those four justices strongly suggested that Congress would have to specifically authorize a vaccine or a test mandate in a new statute. The chief justice and Justice Barrett were less categorical in their approach, but both were clearly skeptical of the regulation. The court's liberal justices were quite simply incredulous. When Justice Thomas, for instance, questioned the necessity of the mandate or test regime, Justice Kagan had this reaction.


ELENA KAGAN: 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. And this is the policy that is most geared to stopping all this.

TOTENBERG: Justice Breyer noted that technically, this case is before the court on an emergency basis because the business groups and states that opposed the regulation want the court to block a lower court decision that allowed the rule to remain in place. Are you really asking us to block the regulation in the public interest, Breyer asked.


STEPHEN BREYER: Is that what you're doing now - to say it's in the public interest to stop this vaccination rule with nearly three-quarters of a million people, new cases every day? I mean, to me, I would find that unbelievable.

TOTENBERG: Lawyer Scott Keller, representing the challengers, noted, however, that states can impose their own vaccine mandates. That prompted Justice Sotomayor to counter that some states have made vaccine and mask mandates illegal. The OSHA rule, she said, is exactly the kind of national rule that Congress provided for in this statute. In the second case, involving health care workers, the court's conservatives did not seem as unified in their hostility. As the chief justice observed, this regulation was different because it's based on the long-established principle that when the government funds a program - in this care, Medicare and Medicaid - it can put conditions on how the money is used. The chief justice put it this way.


ROBERTS: We're dealing here in this case with health care, with Medicare and Medicaid. And what could be closer to addressing the COVID-19 problem than health care? I mean, people already get sick when they go to the hospital. But if they go and face COVID-19 concerns, well, that's much worse.

TOTENBERG: An infuriated Justice Kagan put it more bluntly.


KAGAN: The one thing you can't do is to kill your patients.

TOTENBERG: Today's special session was heard on an expedited basis because the OSHA regulation is about to go into effect, and the Medicare and Medicaid vaccine mandate for health care workers has been blocked by a lower court. So the Supreme Court is likely to act within days.

Nina Totenberg, NPR News, Washington.


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