Conservative Majority on Supreme Court Appears Skeptical of Biden's Vaccine Plan

The court seemed more likely to sustain a separate requirement that health care workers at facilities that receive federal money be vaccinated.

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The conservative majority on the Supreme Court appeared unlikely to support the Biden administration’s vaccine mandate and testing rules for businesses.Jim Wilson/The New York Times

WASHINGTON — The Supreme Court’s conservative majority seemed to be leaning on Friday toward blocking one of the White House’s main pandemic-fighting strategies, expressing skepticism that the Biden administration has the legal power to mandate that large employers require workers to be vaccinated or to undergo frequent testing.

The oral argument over that mandate, which rocketed to the court on an emergency basis after a flurry of legal challenges around the nation from Republican-led states, business groups and others, raised the prospect that the court might deal a severe blow to the Biden administration’s efforts to address the coronavirus as the highly transmissible Omicron variant continues to spread.

The court seemed more likely to allow a separate mandate requiring health care workers at facilities receiving federal money to be vaccinated. That regulation, the subject of a second case, was in keeping with other kinds of federal oversight of medical facilities and was supported by virtually the entire medical establishment, some justices said.

But the questioning concerning the employer mandate was more lopsided. That regulation, one of the most far-reaching policies imposed by President Biden in a bid to control the pandemic, would affect 84 million American workers employed by companies with more than 100 workers. Several conservative justices said it was doubtful that a federal workplace safety law provided the administration with the legal authority to impose it.

The court may act quickly in the case, which was argued on an exceptionally rapid schedule.

Chief Justice John G. Roberts Jr. said the states and Congress, rather than a federal agency, were better suited to address the pandemic in the nation’s workplaces. “This is something that the federal government has never done before,” he said, adding that the administration’s several virus-related mandates were “a workaround” in response to congressional inaction.

Justice Amy Coney Barrett said the challenged regulation appeared to reach too broadly in covering all large employers. Meatpacking plants and dental offices might be subject to regulation, she said, while landscapers should not be.

Justices Neil M. Gorsuch and Brett M. Kavanaugh suggested that the governing statute had not authorized the agency to impose the mandate clearly enough, given the political and economic stakes.

The hearing came as the Omicron variant has led to a steep rise in coronavirus cases, keeping people from returning to the office and increasing hospitalizations. Economists worry the surge in cases could halt job growth in the coming months.

The court’s three more liberal justices said the mandate was a needed response to the public health crisis.

“This is a pandemic in which nearly a million people have died,” Justice Elena Kagan said. “It is by far the greatest public health danger that this country has faced in the last century.”

“We know that the best way to prevent spread is for people to get vaccinated,” she said.

Justice Stephen G. Breyer said he would find it “unbelievable that it could be in the public interest to suddenly stop these vaccinations.”

Some of the participants in the arguments were missing from the courtroom, probably because of the pandemic. Justice Sonia Sotomayor, who has diabetes and had been the only member of the court to wear a mask since the justices returned to the courtroom in October, participated remotely from her chambers.

On Friday, seven of the justices wore masks on the bench for the first time. The exception was Justice Gorsuch, who sits next to Justice Sotomayor.

Two of the lawyers — Benjamin M. Flowers, the solicitor general of Ohio, and Elizabeth Murrill, the solicitor general of Louisiana — participated by telephone. The court’s Covid-19 protocols require lawyers to be tested for the virus.

All of the justices are fully vaccinated and have received a booster shot, a court spokeswoman said.

The Supreme Court has repeatedly upheld state vaccine mandates in a variety of settings against constitutional challenges. The cases before the court are different, as they primarily present the question of whether Congress has authorized the executive branch to institute the requirements.

The answer will mostly turn on the language of the relevant statutes and on whether the administration followed proper procedures in issuing the requirements.

Perhaps the most critical issue for the Biden administration was how the court would respond to the employer vaccine-or-testing mandate. The administration estimated that the rule would cause 22 million people to get vaccinated and prevent 250,000 hospitalizations.

It was issued in November by the Labor Department’s Occupational Safety and Health Administration, or OSHA.

Employers are allowed to give their workers the option to be tested weekly instead of getting the vaccine, though they are not required to pay for the testing. The rule makes an exception for employees with religious objections and those who do not come into close contact with other people at their jobs, like those who work at home or exclusively outdoors.

Under a 1970 law, OSHA has the authority to issue emergency rules for workplace safety, provided it can show that workers are exposed to a grave danger and that the rule is necessary.

Justice Kagan said that the pandemic surely qualified. “Do you know of any workplaces that have not fundamentally transformed themselves in the last two years?” she asked Mr. Flowers.

He responded that the coronavirus was a general risk like terrorism and not a workplace hazard.

“Why not?” Justice Kagan asked, noting that working side by side with other employees for eight hours or more is what happens in the workplace.

But Justice Gorsuch said the agency’s power has been limited to dangers distinctive to the workplace. “Traditionally,” he said, “OSHA has had rules that affect workplace hazards that are unique to the workplace and don’t involve hazards that affect individuals 24 hours a day.”

Justice Samuel A. Alito Jr. asked whether the court should issue a brief stay while it considers the case, National Federation of Independent Business v. Department of Labor, No. 21A244. He noted that OSHA has said it may start citing businesses for noncompliance on Monday.

Solicitor General Elizabeth B. Prelogar, representing the federal government, said she would defer to the court’s judgment but noted that the Monday deadline only concerned record-keeping and masks and that the agency would not enforce the testing requirement until Feb. 9.

Scott A. Keller, a lawyer for a business group challenging the requirements, said that “we need a stay now before enforcement starts.”

“Our members have to submit publicly their plans to how to comply with this regulatory behemoth on Monday,” he said. “Vaccines would need to occur by Feb. 9. You would need two vaccines to comply. Those vaccines would have to start immediately. Tracking and record-keeping cannot happen overnight.”

The second case concerned a measure requiring workers at hospitals and other health care facilities that participate in the Medicare and Medicaid programs to be vaccinated against the coronavirus. The requirement at issue in the case, Biden v. Missouri, No. 21A240, would affect more than 17 million workers, the administration said, and would “save hundreds or even thousands of lives each month.”

States led by Republican officials challenged the regulation, obtaining injunctions against it covering about half of the nation.

Brian H. Fletcher, a lawyer for the federal government, argued that a federal statute gave it broad authority to impose regulations concerning the health and safety of patients at facilities that receive federal money. The statute gives the secretary of health and human services the general power to issue regulations to ensure the “efficient administration” of the Medicare and Medicaid programs, and parts of the statute concerning various kinds of facilities generally also authorize the secretary to impose requirements to protect the health and safety of patients.

Justice Barrett said the patchwork of statutory authority complicated the case and could require different answers for different kinds of facilities.

Justice Kavanaugh said the case was unusual because “the people who are regulated are not here complaining about the regulation.” To the contrary, he said, hospitals and health care groups “overwhelmingly appear to support” it.

Jesus A. Osete, a lawyer for Missouri, said the vaccination requirement would cause health care workers to quit, leading to a crisis at rural hospitals. “That will effectively deprive our citizens of health care,” he said.

Justice Kagan responded that infected workers discouraged patients from getting needed care. “People are not showing up to hospitals because they’re afraid of getting Covid from staff,” she said.

She added that the regulation of health care workers boiled down to straightforward command. “Basically the one thing you can’t do is to kill your patients,” she said. “So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients.”