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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11:41 a.m. ET, January 7, 2022

Chief Justice Roberts hints at possible pro-mandate position

From CNN's Tierney Sneed

Chief Justice John Roberts pivoted off of Justice Elena Kagan’s points about vaccines and testing being the best approach for addressing the pandemic in the workplace.

“Why wouldn’t OSHA have the authority to do the best approach possible to address what — I guess you would agree — is a special workplace problem?” Roberts asked during the Supreme Court's oral arguments.

But in a worrying sign for the Biden administration, Roberts then expressed some skepticism of the administration’s broader approach in rolling vaccine mandates across several agencies.

Roberts referenced the arguments planned later Friday for a separate health care worker mandate being implemented by the US Department of Health and Human Services: “It seems to me that the government is trying to work across the waterfront and is just going agency by agency,” Roberts told US Solicitor General Elizabeth Prelogar.

“I understand the idea that agencies are more expert than Congress. I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before,” Roberts said.

More context: Roberts is a key swing vote the Biden administration will likely need to keep the mandate in force. But the administration will also need to convince a second conservative justice to join the three liberal justices likely to vote in favor of the mandate as well.

1:58 p.m. ET, January 7, 2022

Kagan says vaccines are obvious solution, calling mandates the policy "most geared" to help stop Covid

From CNN's Tierney Sneed

Justice Elena Kagan interrupted Scott Keller, who is representing the National Federation of Independent Business, to ask why vaccines shouldn’t be mandated.

"Why isn’t this necessary to evade a grave risk?” Kagan asked, referencing the language in the relevant OSHA statute.

Kagan noted that people are getting sick and dying every day because of the pandemic.

“This is the policy that is most geared to stopping all of this,” Kagan said. “There is nothing else that will perform that function better,” to incentivize workers to “vaccinate themselves.”

“Whatever necessary means, whatever grave means: why isn’t this necessary and grave?” she added.

The justice called the current situation "extraordinary circumstance, a circumstance this country has never faced before."

Kagan later stressed that the challengers are asking courts to substitute their judgments for that of agency experts.

She argued that agencies — through the President — do face political accountability, while courts are unelected and don’t have any epidemiological expertise. 

“Why in the world would courts decide this question?” Kagan asked.

10:19 a.m. ET, January 7, 2022

Attorney for businesses calls mandates an overreach and notes the Post Office’s request for delay

From CNN's Dan Berman

Scott Keller, who is representing the National Federation of Independent Business, started out today's oral arguments by calling the Occupational Safety and Health Administration (OSHA) vaccine and testing requirements for businesses as an overreach, noting the US Postal Service is already asking for a delay.

Earlier this week, USPS asked the Labor Department for a temporary waiver.

The vaccine-or-test mandate, Deputy Postmaster General Douglas A. Tulino wrote, “is likely to result in the loss of many employees — either by employees leaving or being disciplined.”

Chief Justice John Roberts was skeptical of that argument: “Just because the Post Office can’t do it efficiently doesn’t mean private industry can’t.”

10:01 a.m. ET, January 7, 2022

NOW: Supreme Court hears challenges to Biden vaccine and testing mandates

From CNN's Ariane de Vogue

The Supreme Court is taking up challenges to President Joe Biden's most aggressive attempts so far to combat the spread of Covid-19 — vaccine or testing requirements for large businesses and many health care workers — as the number of infections soar and 40 million adults in the US are still declining to get vaccinated.

Although the justices have been receptive to past attempts by states or universities to mandate vaccines, the new disputes center on federal requirements that raise different legal questions.

Two sets of rules were issued in November. The first would impact some 80 million people and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations.

Critics of the requirements, including a coalition of business groups and Republican-led states, say the Biden administration exceeded its authority in issuing such sweeping mandates that could lead to massive staff shortages and billions of dollars in compliance costs. The administration, on the other hand focuses on the impact of the virus that has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.

Oral arguments are expected to last more than two hours and will be available on a live audio stream, although the chamber itself is closed except for lawyers, court personnel and journalists due to safety protocols aimed at containing the spread of the virus. The court announced this week that all nine of the vaccinated justices have received their booster shots.

Read more about today's oral arguments here.

9:46 a.m. ET, January 7, 2022

Biden administration and vaccine mandate opponents at odds on how many workers would quit over new rules

From CNN's Tierney Sneed 

In its filings, the Biden administration is touting evidence it says shows that imposing vaccine requirements won’t cause the disruptions that administration’s opponents say they will.

The Republican-led states challenging the administration’s health care worker mandate predict mass resignations if the requirement is implemented, with a filing last week noting that “over 30% of healthcare workers remain unvaccinated” in most of the states that joined Louisiana in suing over the requirement.

The Justice Department expressed skepticism in a Monday filing with the Supreme Court that all those who are unvaccinated would quick rather than comply with a vaccine requirement.

The Department pointed to news reports showing that workers aren’t following through on threats to quit if they’re required to be vaccinated, including in a rural Alabama hospital that lost only six of its 260 employees due to a mandate.

In the separate case around the OSHA testing-or-vaccine rules, the department also cited data from the experience that United Airlines and Tysons Food had in imposing their vaccine mandates, with the companies saying respectively that 99.7% and 96% of their workplaces complied with their requirements. 

9:36 a.m. ET, January 7, 2022

White House says vaccine mandates are "legally sound" and will protect Americans' health

From CNN's Ben Tinker

The White House is defending its vaccine orders ahead of Supreme Court oral arguments, scheduled for Friday, on the constitutionality of two mandates the Biden administration says “are legally sound and will protect the health of Americans across the country."

The court is hearing arguments on Biden's vaccine mandates for large employers and certain health care workers.

Biden's Department of Justice will argue the mandate for large employers is “an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs,” while the rule affecting health care workers “will save hundreds or even thousands of lives each month.”

The arguments were scheduled after Supreme Court Justices Samuel Alito and Brett Kavanaugh were asked to intervene in lower court disputes over the mandates. Kavanaugh had been asked by challengers to the employer mandate to reverse an appeals court ruling that said the Biden administration could enforce its vaccine-or-testing rules for large companies.

Kavanuagh and Alito had separately been asked by the Justice Department to reverse appeals court orders against the health care worker mandate, which applies to health care staff at providers that participate in Medicare and Medicaid. The appeals court orders have left the mandate frozen in about half the country.

9:31 a.m. ET, January 7, 2022

Justice Sotomayor will participate in today's oral arguments remotely — court says "she is not ill"

From CNN's Ariane de Vogue

Supreme Court Justice Sonia Sotomayor takes part in a group photo session in April.
Supreme Court Justice Sonia Sotomayor takes part in a group photo session in April. (Erin Schaff/Pool/The New York Times/File)

Justice Sonia Sotomayor will not take the bench today to hear challenges to the Biden administration’s testing or vaccine requirements, instead electing to participate in oral arguments remotely from her chambers.

A Supreme Court spokesperson says "she is not ill." 

Sotomayor is fully vaccinated, and the court announced last week that she received her booster shot. But she has worn a mask during previous arguments, likely due to the fact that she suffers from diabetes.

In addition, two lawyers – Ohio Solicitor General Benjamin M. Flowers and Louisiana Solicitor General Elizabeth Murrill – will participate remotely today by telephone.

A court spokesperson declined to say whether the attorneys were ill. The court’s website mandates that arguing attorneys planning to attend argument must take a PCR Covid-19 test on the morning before argument.

Earlier in the term, Justice Brett Kavanaugh participated remotely from a handful or arguments after testing positive for Covid-19. 

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

9:16 a.m. ET, January 7, 2022

Some states are asking SCOTUS to severely limit when the federal government can ever require vaccines 

From CNN's Tierney Sneed 

At stake in Friday's cases is not just these particular Biden administration vaccine policies, but the federal government's — and particularly the executive branch's — ability to respond to public health issues in general. 

A core holding in most of the lower court rulings against the mandates is that Congress must give explicit authority to agencies to impose vaccine requirements — and the statutes the Biden administration is using to justify the moves weren't explicit enough. 

But some states challenging the health care worker mandate are going even further and have argued to the Supreme Court that even if Congress had passed a law implementing a version of that mandate, it would be unconstitutional. The mandate requires that certain health care workers be vaccinated as a condition of their facilities participating in Medicare and Medicaid. 

A coalition of states led by Louisiana said that even if Congress had given the US Department of Health and Human Services an unambiguous instruction to impose the mandate, it would be a violation of the Constitution's Spending Clause. 

Other states that are challenging the mandate don't go that far, but they say that because the mandate is close to the limits of what's constitutional, the executive branch can't implement it unilaterally. 

9:22 a.m. ET, January 7, 2022

Your guide to today's Supreme Court oral arguments on Biden's Covid-19 vaccine mandates

From CNN's Ariane de Vogue 

A man walks past the US Supreme Court on Friday morning.
A man walks past the US Supreme Court on Friday morning. (Samuel Corum/Getty Images)

The very fact that the Supreme Court is hearing these two disputes on such an accelerated time schedule highlights how seriously the justices are taking challenges to the Biden administration’s latest attempt to combat Covid-19.

Here's your guide to today's oral arguments:

What is being discussed: At issue are two set of rules issued in November. The first would impact some 80 million individuals and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations. 

What both sides are saying: Critics of the requirements, including a coalition of business groups and Republican-led states, say the government agencies exceeded their authority in issuing such sweeping mandates that could lead to massive staff shortages and billions of dollars in compliance costs. The Biden administration, on the other hand, focuses on the impact of the virus that has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.  

The justices to watch: Both disputes trigger legal questions that have often divided the justices. The dispute boils down to whether a federal agency—that is not directly accountable to the public—has broad authority to issue rules that impact millions of Americans. Conservatives, including the likes of two of former President Trump’s nominees, Brett Kavanaugh and Neil Gorsuch, have expressed reservations of agencies acting in such a way without crystal clear authorization from Congress. Look for the justices to ask a lot about the agencies’ statutory authority. They may even raise constitutional questions concerning separation of powers. Keep in mind, the justices have so far tolerated vaccine mandates issued by the states, but Friday’s cases concern federal mandates and raise different legal questions. 

The first case: First up will be veteran litigator Scott A. Keller. He is in private practice now but he served for three years as Texas’ solicitor general and is a former law clerk to retired Justice Anthony Kennedy. He is representing a coalition of business groups in National Federation of Independent Business et al. v. Department of Labor. He’ll tell the court that OSHA does not have the authority to put in place a vaccine or testing regime that will cover two-thirds of all private-sector workers. He stresses how the rule will impose substantial compliance costs on businesses that will be faced with incurring the cost of testing for millions of employees who refuse to vaccinate.   

Next up will be Ohio’s Solicitor General, Benjamin M. Flowers, representing GOP-led states. Flowers served as a law clerk for the late Justice Antonin Scalia. Look for him to stress that the federal mandate is intruding on a state’s authority to enact its own vaccination and testing requirements. 

Biden’s newly confirmed Solicitor General Elizabeth Prelogar — who has already this term been tasked with arguing a major abortion case — will stand up for 30 minutes and argue the government’s position.  

Prelogar sees the vaccine mandate differently, stressing the pandemic’s devastating impact. She may allude to the fact that so far 40 million Americans are choosing not to vaccinate which is wreaking havoc on the country and in the workplace. She will concentrate on the agency’s authority to act on an emergency basis to protect employees if they are exposed to “grave danger.” 

The second case: The second rule concerns a vaccine policy rolled out in November by the US Department of Health and Human Services' Centers for Medicare & Medicaid Services, which sought to require the Covid-19 vaccine for certain health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid programs.

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.  

Many believe the second case concerning a mandate that impacts fewer individuals might gain more traction with the justices. Between the two, the thinking goes, health care providers that participate in Medicaid and Medicare programs have long been subject to conditions adopted by the government. 

Because two lower courts blocked the mandate from going into effect in about half the country, the government lawyer, Principal Deputy Solicitor General Brian H. Fletcher, will argue first — urging the justices to allow it to go into effect nationwide. For a time, Fletcher served as the government’s top lawyer at the Supreme Court while Prelogar’s confirmation was pending. 

Like Prelogar, Fletcher will lean on the impact of the pandemic on the country. He will say that the Secretary of Health and Human Services has authority to protect the health and safety of Medicare and Medicaid patents many of whom are particularly vulnerable due to age and disability.  

Two different coalitions of Republican-led states are challenging the CMS mandate. 

Jesus A. Osete, Missouri’s deputy attorney general, calls the mandate “sweeping an unprecedented” in court papers and he said it would create a crisis in health care facilities in rural America because it would force “millions of workers to choose between losing their jobs or complying with an unlawful federal mandate.”  

Separately, Elizabeth Murrill, Louisiana’s solicitor general, representing a different set of states, will argue that the mandate is also unconstitutional. She is expected to say that Congress can’t simply delegate the authority to a federal agency to require vaccines for over 10 million health care workers without a clear statement of intent.