SCOTUS hears oral arguments on Biden vaccine and testing mandates

By Tierney Sneed, Adrienne Vogt, Aditi Sangal, Melissa Macaya, Meg Wagner and Melissa Mahtani, CNN

Updated 4:39 p.m. ET, January 7, 2022
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2:58 p.m. ET, January 7, 2022

Kavanaugh to Missouri official: "Where are the regulated parties complaining about the regulation?"

From CNN's Tierney Sneed

Justice Brett Kavanaugh, a critical conservative vote, focused on what the Biden administration says is a procedural flaw in the case that the states are bringing against the mandate.

As Kavanaugh noted, its not individual health care facilities that are subject to the regulations that are before justices arguing against the mandate, but rather states.

Kavanaugh said that health care provider organizations overwhelmingly support the mandate.

“Where are the regulated parties complaining about the regulation?” Kavanaugh said in an exchange with Jesus A. Osete, Missouri's deputy attorney general, noting in the OSHA case earlier Friday that private employers that are subject to OSHA’s rules were before the court arguing against the regulation.

“There's a missing element here,” Kavanaugh said.

4:36 p.m. ET, January 7, 2022

2 attorneys challenging vaccine mandates appeared virtually at SCOTUS due to Covid-19 protocols

From CNN's Ariane de Vogue and Tierney Sneed

Two attorneys from states challenging the Biden administration's vaccine and testing mandates participated in oral arguments at the Supreme Court remotely Friday due to the court's Covid-19 protocols.

In addition, Justice Sonia Sotomayor took part from her chambers, but she is not ill, the court said.

Ohio's Solicitor General Benjamin M. Flowers and Louisiana Solicitor General Elizabeth Murrill — participated by telephone. Attorneys planning to attend arguments in person must take a PCR Covid test on the morning before arguments.

Flowers had Covid late last year but has recovered, the Ohio Attorney General's office said.

"Ben, who is vaccinated and boosted, tested positive for COVID-19 after Christmas," said press secretary Steve Irwin. "His symptoms were exceptionally mild and he has since fully recovered. The Court required a PCR test yesterday which detected the virus so for that reason he is arguing remotely."

The Louisiana Attorney General's office said only that Murrill was absent due to the court's protocols.

"In accordance with the COVID protocols of the Court, Solicitor General Liz Murrill will be arguing via phone at today's hearing," the office said.

This was the first time an attorney this term will participate remotely, the court's spokeswoman said. Earlier in the term, Justice Brett Kavanaugh participated remotely from a handful or arguments after testing positive for Covid, and Justice Neil Gorsuch also called in to arguments when he was experiencing a stomach bug.

The court did not give a reason for Sotomayor's decision, with a court spokeswoman saying only that the liberal justice "is not ill."

Sotomayor is fully vaccinated and the court announced last week that she had received her booster shot. But she had been the only justice routinely wearing a mask during previous oral arguments, likely due to the fact that she has diabetes.

Friday, for the first time, seven of the justices appeared in the majestic chamber wearing masks, though Gorsuch chose not to.

All of the justices are fully vaccinated, the court has said, and they have all received booster shots.

1:24 p.m. ET, January 7, 2022

Ruling on OSHA vaccine and testing mandate could happen in record-breaking time

From CNN's Dan Berman

A partial ruling from the Supreme Court could come in record-breaking time given the Occupational Safety and Health Administration vaccine and testing mandate takes effect Monday.

CNN legal analyst and University of Texas Law School professor Steve Vladeck notes that the court normally issues opinions on cases it hears oral arguments on at 10 a.m. on pre-scheduled days.

But given the issues at play and the fact these are emergency orders, rulings could come today or over the weekend.

Vladeck noted on Twitter the historic nature of that timing:

“The last time I can remember #SCOTUS handing down an off-hours decision after a case was argued was Bush v. Gore — argument was on the morning of December 11, 2000; ruling was handed down the next evening.”

1:23 p.m. ET, January 7, 2022

Liberal justices grill Missouri on other types of regulations HHS puts on health care workers

From CNN's Tierney Sneed

A line of question from liberal justices suggested that the arguments that red states are making for blocking the Biden administration's vaccine mandate could implicate other types of regulations the Department of Health and Human Services implements for patient safety.

Justice Elena Kagan asked Jesus A. Osete, Missouri's deputy attorney general, whether the HHS secretary could require handwashing or sanitation of equipment.

Justice Stephen Breyer asked about regulations preventing people with diphtheria from entering facilities. When Osete conceded HHS could require it, Breyer zeroed in: “Why can they say the one and not the other,” he said referring to the vaccine mandate.

Osete said that vaccine mandates have historically been in the states’ province.

1:04 p.m. ET, January 7, 2022

Why didn't the Biden administration work faster to roll out vaccine policies? A Justice official explains.

From CNN's Tierney Sneed

The states challenging the mandate have argued that in the several weeks the Department of Health and Human Services took to roll out the policy, it could have gone through a notice and comment period that would allow stakeholders to formally weigh in. But the Biden administration says it’d face a challenge if it didn’t follow the law.

“I guess ... an ordinary person might say, 'well, if it’s really important, why don’t you just work faster?'” Justice Elena Kagan asked during today's oral arguments.

US Principal Deputy Solicitor General Brian Fletcher said that Health and Human Services Secretary Xavier Becerra did work extremely fast, but also needed to produce a rule that would satisfy all the legal standards.

“If the secretary has rushed something out with a less thorough explanation, I think we would be hearing legal challenges that he hadn’t adequately explained things, or considered things or calculated the cost-benefits,” Fletcher said.
12:50 p.m. ET, January 7, 2022

Virginia's new GOP leaders say the state will join vaccine mandate challenges

From CNN's Terrence Burlij

Virginia Gov.-elect Glenn Youngkin and Attorney General-elect Jason Miyares announced Friday that the commonwealth will join other Republican-led states in challenging the Biden administration’s Covid-19 vaccine mandates.

The announcement comes on the day the Supreme Court is hearing arguments on President Biden’s most aggressive attempts to combat the spread of Covid-19 with vaccine or testing requirements for large businesses and many health care workers.

“While we believe that the vaccine is a critical tool in the fight against COVID-19, we strongly believe that the Federal government cannot impose its will and restrict the freedoms of Americans and that Virginia is at its best when her people are allowed to make the best decisions for their families or businesses,” the pair said in a joint statement.

Youngkin and Miyares said after they are inaugurated on Jan. 15 they “will quickly move to protect Virginians’ freedoms” from the Biden administration’s vaccine mandates.

12:43 p.m. ET, January 7, 2022

Justice Sotomayor stresses spending clause in health care mandate

From CNN's Tierney Sneed

Justice Sonia Sotomayor jumped into the oral arguments to note one key distinction between the two cases the court is hearing today.

Unlike the Occupational Safety and Health Administration (OSHA) rules requiring vaccines or testing, the vaccine mandate for health care workers has a different federal authority.

For the health care worker mandate, the administration is requiring vaccines for health care staff as condition for facilities to receive federal health funding — i.e. through their participation in Medicare and Medicaid.

That makes this case a Spending Clause case, Sotomayor said, and she asked if the Spending Clause cases give the federal government more power to define where it wants to spend its money. That difference could be key in terms of how the court eventually rules.

12:24 p.m. ET, January 7, 2022

NOW: Arguments start in Biden health care worker mandate case

From CNN's Tierney Sneed

People pour salt on the front plaza of the US Supreme Court on Friday.
People pour salt on the front plaza of the US Supreme Court on Friday. (Anna Moneymaker/Getty Images)

Arguments in the second mandate case have started, with US Principal Deputy Solicitor General Brian Fletcher speaking first.

In this case, the Biden administration is arguing the justices should reverse court decisions blocking the US Department of Health and Human Services mandate for certain health care workers, so its lawyer is going first.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by Dec. 6 and the mandate allows for some religious and medical exemptions.

4:18 p.m. ET, January 7, 2022

Conservative justices seem skeptical after first 2 hours of oral arguments on mandate challenges

From CNN's Tierney Sneed

Solicitor General Elizabeth Prelogar makes her case to the court on Friday.
Solicitor General Elizabeth Prelogar makes her case to the court on Friday. (Bill Hennessy)

Arguments ended after more than two hours in the challenge of the Biden administration's vaccine and testing mandate for businesses of over 100 people, and the conservative majority seemed skeptical of the Biden position.

Solicitor General Elizabeth Prelogar wrapped up her arguments with several rounds of questions about the major questions doctrine, with Justices Kavanaugh and Neil Gorsuch signaling their interest in making clear how courts should consider situations where agencies are acting with a policy that doesn’t relate to an explicit instruction from Congress.

Gorsuch zoomed out big picture, by stressing that courts are not being asked to act like public health experts but rather are being asked to decide whether a federal agency vs. Congress and the states gets to design the public health response.

Kavanaugh, meanwhile, brought up comparisons to cases where the court struck down agency actions under the doctrine.

Notably, Justice Amy Coney Barrett, in finishing up the questioning for Prelogar, pivoted away from discussion of the doctrine, and focused her questions on the procedural issues the challengers raised about how OSHA went about implementing the policy.