SCOTUS sure seemed skeptical about Biden's employer vaccine mandate during today's oral arguments

AP Photo/Alex Brandon

The conservatives did, anyway. The liberals were more focused on reciting bogus COVID statistics.

I’ve always thought Biden was destined to lose this case, as it’s asking a lot of a 6-3 Republican Court to rubber-stamp a novel public health mandate targeting millions as a legit exercise of administrative power. But he would have stood a better chance of winning if it had been heard eight months ago, during that golden moment when Alpha was the dominant variant and cases had plummeted because the vaccines were limiting transmission. Studies at the time showed that the vaxxed carried much less virus in their noses and throats than the unvaxxed did. Under those circumstances, a vaccine mandate made more sense. Forcing the unvaccinated to get the jab reduced or even eliminated the risk of them infecting customers or their co-workers.

Then Delta arrived and immunity waned. The new variant began punching through, causing breakthrough infections. Eventually Omicron swept the country, infecting the vaccinated by the millions. The shots no longer do much to prevent transmission, only to prevent severe illness. To argue now per the statute that it’s “necessary” for OSHA to act to protect workers from “grave danger” caused by a dangerous substance, you have to argue in terms of personal risk to the unvaccinated. They’re no longer a special danger to their colleagues in the workplace; the danger now has to do with the unvaxxed catching COVID at work — or outside work — and ending up with a severe case that threatens their life. Where’s the unique “workplace” angle in that logic that justifies OSHA intervening?

If the mandate is now about forcing the unvaxxed to get the shot for their own good such that their refusal is only a “grave danger” to themselves, why should the federal government have the power to use labor regulations to compel that decision? The only risk to the community in the unvaxxed not getting their shots at this point is that ERs will fill up with unvaccinated people, compromising the health-care system’s ability to care for patients. But that concern is far afield from OSHA’s mandate, which is supposedly limited to making sure workers are safe in the workplace. If OSHA can require you to get jabbed to protect your own health and reduce the potential load on hospitals, it’s unclear why it couldn’t also require Americans to stop smoking or drinking *even outside of work* in the interest of wellness. That slope can get awfully slippery.

The scope of OSHA’s authority was a key concern for conservative justices oral arguments this morning.

Members of the Supreme Court’s conservative majority seemed skeptical on Friday that the Biden administration has the legal power to mandate that the nation’s large employers require workers to be vaccinated against the coronavirus or to undergo frequent testing. A federal workplace safety law, they indicated during a two-hour argument, did not provide legal authority for the sweeping emergency measure.

Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch said the states and Congress, rather than a federal agency, were better situated to address the pandemic. Justice Amy Coney Barrett said the challenged regulation appeared to reach too broadly in covering all large employers.

Justices 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.

I laughed when one justice (Roberts, I think) brought up the fact that Biden chief of staff Ron Klain once retweeted this. Is SCOTUS on Twitter?

That was a foolish indirect admission by Klain that the vaccine mandate has nothing to do with special risks in the workplace and everything to do with exploiting a labor regulation to vaccinate as much of the general population as possible. Seeing that, a conservative jurist will naturally wonder whether the mandate isn’t an example of federal overreach, a case of the executive trying to shoehorn a sweeping, generally applicable policy into some much narrower grant of legal authority. That became a hot topic at today’s hearing among the Republican appointees. At what point is a new policy issued by an administrative agency so broad that we should demand Congress act to authorize that policy first?

“It is not our role to decide public health questions,” [Gorsuch] said, identifying the Court’s choices as a “federal agency on the one hand” and the “Congress of the United States and state governments” on the other.

“Why does this not belong to people’s representatives,” he asked, pointing out that states usually have the responsibility for overseeing vaccine mandates.

“Congress has had a year to act on the question of vaccine mandates already,” he said, echoing Roberts’ claim that the federal government is going “agency by agency” because it can’t make Congress act.

Biden is trying to use OSHA’s authority to vaccinate as many people as possible because he knows he hasn’t a prayer of getting Congress to pass a law authorizing him to do so. And the conservatives were onto him at the hearing, repeatedly bringing up the “major questions doctrine” as a potential obstacle to the mandate. Dan McLaughlin describes that doctrine as “not actually a freestanding constitutional rule, but rather a rule of construction: courts should not presume that Congress has delegated authority to an agency on a particular topic if that authority is not explicit and the topic is a big, contentious national debate.” Normally courts will defer to administrative agencies like OSHA but the “major questions doctrine” creates an exception in which, if an agency’s policy proposal is reeeeeally ambitious, they’ll conclude that only Congress can properly act on the matter. Sounds like that’s where this decision is headed, which means it’s curtains for the vaccine mandate.

Not that it much matters at this point. Companies will still be free to impose their own mandates, and no doubt Biden will exhort them to do so. It may also be that Omicron will instill enough immunity across the population that even most of the unvaxxed end up “vaccinated” by the time the wave ends. McLaughlin thinks the likeliest outcome of the decision is the Court finding that OSHA has some authority to regulate infectious disease in the workplace but not as much as it’s claiming by issuing a mandate this broad. Stay tuned.