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HomePoliticsAmerican PoliticsSupreme {Courtroom} Skeptical of Biden Vaccine Mandates, Decision Within Days

Supreme {Courtroom} Skeptical of Biden Vaccine Mandates, Decision Within Days

WASHINGTON, {DC – Vaccine mandates had a rough {trip to} the Supreme Court Friday,|{Trip to} the Supreme Court Friday dc – Vaccine mandates had a rough,} {because the} justices appear poised to block President Joe Biden’s large employer vaccine mandate, {although} fate of Biden’s {doctor} mandate remains unclear.

Pursuant to Biden’s expressed wishes, federal agencies {have already been} exploring {just how many} Americans {they might} order vaccinated without Congress’s inserting a vaccine mandate into {among} its coronavirus-response laws. (Think {attempting to} impose Obamacare’s individual mandate without Congress ever passing the Affordable Care Act.{) The Supreme Court heard challenges to two {of these} mandates Friday.|friday ) The Supreme Court heard challenges to two {of these} mandates.}

First was the Occupational Safety and Health Administration (OSHA), {an element} of the U.S. Department of Labor, which issued a Emergency Temporary Standard (ETS) mandating employers with 100 {or even more} employees to require {their workers} to get vaccinated. {The employer must fire any employee who refused or pay a crippling penalty either,} {january 10 beginning.}


“{The federal government} {is wanting} to work {over the} waterfront,|

“The national government {is wanting} to work {over the} waterfront,} {and {is merely} going agency by agency,|and {is certainly going} agency by agency just,}” Chief Justice John Roberts – considered a swing vote in these legal challenges – observed. He said the administration’s actions amounted to a “workaround. I’m just {racking your brains on} what you {want to} work around.”

“{It appears} {if you ask me} that the {increasingly more} mandates that {pop-up} {in various} agencies, I wonder if it’s not fair {for all of us} at the court {to check out} {an over-all} exercise of power by {the government},” Roberts continued, adding that the court should, {ask “then,} ‘Well, why doesn’t Congress have a say in this? {And just why} isn’t it {the principal} responsibility of the states?’”

“{Appears like} the sort of {items that} states are {giving an answer to}, or {ought to be},” added Roberts, “or that Congress is {giving an answer to}, or {ought to be}.”

Justice Clarence Thomas {appeared to} reject the Biden Justice Department’s {declare that} 29 U.S.C. § 655(c) – the federal statute for OSHA to issue an ETS – could authorize a vaccine mandate.

“When OSHA itself {hasn’t} mandated vaccines {as well as} testing before … {all those} are factors in the scope of what OSHA could do here,” Thomas explained.


Thomas {continued} {to include} that the Federal “Government {may have} had notice and comment,|

Thomas {continued} {to include} that the Federal “Government {may have} had comment and notice,}” referring to {the standard} legal process for agencies, including OSHA, to issue regulations, {requiring months of public participation and comment,} giving companies {to be able to} voice their concerns and forcing the agency {to create} a public record for legal review.

“Why isn’t this {essential to} abate the grave risk?” asked Justice Elena Kagan, {clearly supporting the mandate and citing {the truth that} over a million {folks have} died from Covid.|clearly supporting the mandate and citing the known fact that over a million people have died from Covid.}

Accomplished Supreme Court litigator Scott Keller, representing the National Federation of Independent Business (NFIB) in its challenge to the OSHA mandate, explained that federal law imposed both restrictions and strict conditions when {a company} is “wielding {exactly what is a} delicate and extraordinary power.”


“The question {isn’t} {what’s} this country {can do} about COVID,|

“The relevant question {isn’t} {what’s} this country {can do} about COVID,} {” Keller added.} {“The question is who {reaches} decide it.|“The relevant question is who {reaches} decide it.}”

When later {giving an answer to} {some} hostile questions from Justice Sonia Sotomayor, Keller explained that even {the government} admits that {around} 3 percent of employees will quit {because of} the ETS {if it’s} not blocked, {which may} be over 2 million jobs.

Protesters stand {close to} {an indicator} during an anti-vaccination rally at the Golden Gate Bridge on November 11, 2021 in {SAN FRANCISCO BAY AREA}, California. (Photo by Justin Sullivan/Getty Images)

“Congress and states and governors wielding emergency powers” {could probably} impose such vaccine mandates, Keller conceded, but federal agencies cannot {achieve this} by executive fiat.

Justice Brett Kavanaugh focused his questions on the major questions doctrine, under which Congress must {consult with} clear authorizing language when it seeks {to provide} an agency {capacity to} issue regulations of vast political and economic significance, if the Constitution permits Congress {to take action} at all.


“{The issue} is {putting it on} is determining when something is major enough,|

“{The issue} is applying it {will do} determining when something is major,}” Kavanaugh explained. “What should we look at {to say it} one is the kind of rule … that we should consider major?”


Keller answered that the court should {go through the} “size and scope” of the regulation,|

Keller answered that the court should {go through the} scope” and “size of the regulation,} {noting that here {it could} dictate the fate {of just one} 1.|noting that {it could} dictate the fate {of just one} 1 here.}8 million businesses and 84 million employees, {qualifying as a matter of “vast political and economic significance easily.}”

“Is this the agency {which has} expertise over communicable diseases?{” Keller rhetorically asked,} {saying that too {is really a} factor {concerning} whether OSHA has this power.|saying {that is clearly a} factor {concerning} whether OSHA has this power too.} “No, {it isn’t}.”

Justice Neil Gorsuch made {the idea} during argument that “it’s not that judges are {likely to} decide questions of public health,” but that the court’s role in this challenge to OSHA’s mandate {would be to} “make sure {the correct} party does.”


Ohio Solicitor General Benjamin Flowers participated in oral arguments also,} {representing 27 states – {most} {the country} – likewise challenging OSHA’s legal authority.|representing 27 states – {most} {the country} – challenging OSHA’s legal authority likewise.} He cited the constitutional doubt doctrine {to state} that Congress {cannot} have conferred such staggering {capacity to} OSHA, explaining, “{You can find} limits to {just how much} authority Congress {can provide} away.”


Justice Sonia Sotomayor defended OSHA’s power,} {participating by phone {rather than} entering the courtroom.|participating by phone of entering the courtroom instead.}

“Those numbers show that omicron {is really as} deadly and causes {just as much} {serious illness} in the unvaccinated as delta did,” Sotomayor said, sparking instant online criticism and earning {an undeniable fact} check from Breitbart. “{We’ve} over 100,{000 children – which we’ve {never really had} before – in serious condition {and several|and lots of} on ventilators.|000 children – which we’ve had before – in serious condition {and several} on ventilators never.}” ({The actual fact} check revealed {the amount of} children in hospital care {is just about} 3,000, and that omicron appears {significantly less} severe than delta, observations confirmed by {several other|many other} {doctors} responding after arguments.)

After getting U.S. Solicitor General Elizabeth Prelogar to {concur that} the Biden administration {wouldn’t normally} object if the court {must|has to} issue a multi-day administrative stay – effectively a temporary pause – to block the OSHA mandate {to complete} writing its decision {in cases like this}, Justice Samuel Alito raised several objections to the ETS.

“On {the problem} of whether you’re {attempting to} squeeze an elephant {right into a} mousehole … most OSHA regulations … affect employees {if they} are {face to face}, {not {if they} are off {the work},|not {if they} are off the working job,}” Alito noted, using language {from the} major questions doctrine. “Isn’t this {not the same as} anything OSHA has ever done {due to that}?”

After forcing Prelogar to {concur that} there is {some extent} of medical risk {for some} {people from} the vaccine, {Alito further pressed,} {“Has OSHA ever imposed {any} safety regulation that imposes some extra risk,|“Has OSHA imposed {any} safety regulation that imposes some extra risk ever,} some different risk on the employee?”

A Los Angeles Fire Department (LAFD) firefighter receives a Moderna COVID-19 vaccination dose from firefighter Michael Perez (L) at a fire station on January 29, 2021 in Los Angeles, California. LAFD has recorded a ‘sharp decline’ in coronavirus cases after firefighters began receiving the vaccine shots on December 28. (Photo by Mario Tama/Getty Images)

A {LA} Fire Department (LAFD) firefighter receives a Moderna COVID-19 vaccination dose in {LA}, California. (Photo by Mario Tama/Getty Images)

Alito balked when Prelogar {attempted} to argue that employers could substitute a masking and {screening|tests|examining} regime {instead of} vaccines, noting the well-{recognized|identified} shortage of tests, {requesting|inquiring}, “{May be the} testing {alternate|substitute|choice} viable {currently}?”

“Traditionally, states {experienced} responsibility for vaccine mandates,” Gorsuch {started} as he voiced {several|many} concerns about OSHA {achieving this} as an ETS {instead of} leave {the problem} to Congress. {“Congress {has already established} {per year} to enact a vaccine mandate already.|{per year} to enact a vaccine mandate already “Congress {has already established}.}”

“Traditionally, OSHA {has already established} rules that {connect with} {place of work} hazards,” he {pointed out|described|stated|talked about} as another objection, {… “not.} {a day 24 hours,}” which is {just what a} vaccine would {total}.

“OSHA {didn’t} adopt this {guideline|principle} in {reaction to} an emergency, {{which includes} been going since 2020… Facts will continually {switch|modification|transformation|shift},|{which includes} been going since 2020… Facts {changes} continually,}” Justice Amy Coney Barrett {thought to} Prelogar, exploring {another} {group of} objections. “When {will} the emergency end?… {2 yrs} from now, {do {we’ve} any reason {to trust} that COVID {will undoubtedly be} gone?|do {we’ve} any good reason {to trust} that COVID {will undoubtedly be} gone?} …When must OSHA {really|in fact} resort to its {normal} authority, {and {proceed through} notice and comment?|and {proceed through} comment and notice?}”

The court {furthermore} {noticed} arguments to the vaccine mandate issued by the Centers for Medicare and Medicaid {Solutions|Providers} (CMS), the {element of} the U.S. Department of {Health insurance and} Human {Solutions|Providers} (HHS) that funds those massive federal programs. That mandate requires 10.2 million healthcare workers {to obtain} vaccinated, {or their employers {will be} ineligible {to get} CMS dollars – {which may} bankrupt countless {physicians} and hospitals.|or their {companies} {will be} ineligible {to get} CMS dollars – {which may} bankrupt countless hospitals and doctors.}

{Presently}, the CMS mandate {offers|provides} been blocked by various court orders in 25 states, {{nonetheless it} is {completely} enforceable in {the rest of the} 25 states.|{nonetheless it} is enforceable in {the rest of the} 25 states fully.}

“Do the states have clear notice” that by {registering for} Medicaid, {the government} could impose a vaccine mandate on those {says|claims}” Alito pressed U.S. Deputy Solicitor {Common} Brian Fletcher {because the} latter {attemptedto} defend the CMS mandate. Alito questioned what provision in {federal government} {legislation|regulation|rules|laws} said HHS is “authorized {to safeguard} {medical} and welfare” {of individuals}, asking, {“{Will there be} any limit {compared to that} power?|“Is any {control|restriction|limitation} {compared to that} power there?}”

“{You’re} required by statute to {check with} states,{” Alito noted,} adding that {it might be} odd if federal law was written to authorize what happened here, {whereby {the government} imposes a mandate on the states,|whereby {the government} imposes a mandate on the continuing states,} {then {foretells} the states only {following the} fact,|{foretells} the states only {following the} fact then,} and called {this} exchange a “consultation.”

“The [HHS] Secretary shall not control the tenure of employees” at Medicaid providers, Justice Neil Gorsuch quoted from the federal law HHS claimed as its authority, asking Fletcher why the CMS mandate {will not} violate that restriction on HHS, {considering that} employers would be {necessary to} fire employees {that are} unvaccinated.

Sept. 19, 2019, U.S. Supreme Court Justice Neil Gorsuch spoke at the LBJ Presidential Library

LBJ Library/Flickr

Gorsuch also {thought to} Fletcher that {the government} “can’t use {cash} to commandeer” the {says|claims} into administering a {federal government} {system|plan}, pressing him {to describe} why this mandate {will not} cross that Tenth Amendment limit on federal power.


After tough {queries} on both sides,|

After tough {queries} on both relative sides,} it was {not yet determined} whether the same {most} the justices who {appeared to} oppose the OSHA mandate were {furthermore} united {within their} opposition to the CMS mandate.


Decisions usually {drop} months after argument.|

Decisions {drop} months after argument usually.} {{However in} this extremely unusual instance of hearing arguments over stay applications,|{However in} this unusual instance of hearing arguments over stay applications extremely,} decisions {can be expected} within a {few weeks}, {or even} days.

Given Prelogar’s concession to Alito, {additionally it is} possible that the court could grant an administrative stay before Monday {to avoid} the OSHA mandate from {entering} effect {as the} justices finish writing their decision.


The applications in {the initial} hour’s arguments were NFIB v.|

The applications in {the initial} hour’s arguments were v NFIB.} OSHA , No. 21A244 and Ohio v. Dep’t of Labor , No. 21A247, {and {the next} hour’s arguments were Biden v.|and {the next} hour’s arguments were v Biden.} Missouri , No. 21A240 and Becerra v. Louisiana , No. 21A241 in the Supreme Court of {america}.


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