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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2:47 p.m. ET, January 7, 2022

Key things to know about today's oral arguments — and what could happen next

From CNN's Tierney Sneed and Ariane de Vogue

Eight Supreme Court justices are seen in this courtroom sketch from Friday's proceedings. Justice Sonia Sotomayor was attending remotely.
Eight Supreme Court justices are seen in this courtroom sketch from Friday's proceedings. Justice Sonia Sotomayor was attending remotely. (Bill Hennessy)

Nearly an hour and a half after it started, the oral arguments in the health care worker mandate case have ended.

Principal Deputy Solicitor General Brian H. Fletcher wrapped the hearing with a brief rebuttal that did not attract any additional questions from the justices.

The Supreme Court spent about three and half hours total on both cases, in what was a marathon session for a court that rarely hosts oral arguments on Friday.

The court appeared ready to reject of one of President Biden’s most aggressive attempts to combat the spread of Covid-19 — a vaccine-or-testing requirement aimed at large businesses.

But in the separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers. The court heard arguments for almost four hours. The three liberal justices on the court expressed clear approval for the government’s rules in both areas.

The cases come as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated.

What comes next was only briefly alluded to during Friday’s session. The cases before the Supreme Court are in an emergency posture, meaning that the court is not being asked to do a full review on the merits on each case.

Rather, the justices are being asked to temporarily put on hold lower court orders while the cases proceed in those lower courts.

For the Occupational Safety and Health Administration's (OSHA) testing-or-vaccine rules, states are asking the court to put on hold an appeals court order that allows the mandate to be implemented, and in the health care worker case, the administration is asking the justices to lift lower court orders freezing the requirement in several states while the lawsuit plays out.

On these types of emergency requests, the Supreme Court is not required to issue full opinions. It could simply issue one-line orders, that could come at any time.

In contrast, the court typically announces ahead of time when it plans to issue formal opinions — though the court won’t say ahead of time which case it is handing down.

So it’s unclear how quickly we will hear from the court, how much explanation it will give for why it’s doing what it is doing, or even if there will be a heads up that the decision is coming.

A partial ruling could come in record-breaking time given the OSHA mandate for businesses takes effect Monday. The one hint we got was from Justice Samuel Alito, who suggested during the OSHA case that the court might need to issue a brief administrative hold halting the rule, which the administration will otherwise begin implementing next week.

It was not clear how many other justices were on board with that idea, as US Solicitor General Elizabeth Prelogar stressed that the only element of the OSHA rule going into force was its masking requirement for unvaccinated workers. The more burdensome testing requirement for those workers won’t be implemented until February, Prelogar said.

4:33 p.m. ET, January 7, 2022

Why the Supreme Court's next steps on the mandates are about more than just vaccines

Analysis from CNN's Tierney

How the Supreme Court goes about its next steps is very important because the reach these cases could have go beyond just the two vaccine mandates in question.

There are challenges to other federal vaccine rules — particularly President Biden's requirement for certain federal contractors — that are not currently before the Supreme Court but could be implicated by its reasoning in these two cases. 

But besides that, the legal issues prompted by these two cases could apply to a whole host of policy matters — from the implementation of the Affordable Care Act to the environment or immigration matters — where the executive branch currently has the discretion to issue regulations not specifically laid out by Congress.

Everyone has different reasons for what to decide: While conservative justices looked poised to block Biden's requirements Friday, it's not clear from their comments at today's hearing that they would share the same reasons to do so.

In the employer mandate case, Justices Neil Gorsuch and Brett Kavanaugh were particularly interested in the sweeping arguments made by the challengers that the executive branch did not have the flexibility to issue the vaccine rules without an explicit directive from Congress.

Justices Clarence Thomas and Amy Coney Barrett asked questions about the procedural mechanism OSHA used to roll out the regulation, touching on narrower arguments the challengers are making about why it should be halted.

The conservative justices showed more openness to allowing the mandate for health care workers to go into effect, however. Here too, they raised different reasons for being skeptical of the arguments the states were bringing. Justice Kavanaugh focused in on how the facilities that were the main targets of the regulations were not before the court challenging the requirement, suggested that that the red states that had brought the lawsuits were not the proper defendants for getting the mandate blocked. 

Chief Justice John Roberts, meanwhile, appeared sympathetic to the argument that the Constitution's Spending Clause gives the federal government authority in the health care worker case that it doesn't have with the employer mandate. The administration is seeking to implement the health care worker mandate as a condition for their facilities to receive federal health care funding.

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.