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Opinion The Supreme Court must uphold Biden’s vaccine mandates — and fast

The Supreme Court is set to scrutinize coronavirus vaccine mandates in the coming weeks. (Ted S. Warren/AP)
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Lawrence O. Gostin, a professor at Georgetown University and director of the World Health Organization Collaborating Center on National and Global Health Law, is author of “Global Health Security: A Blueprint for the Future.” Jeffrey E. Harris is emeritus professor at the Massachusetts Institute of Technology and practicing physician at Eisner Health, a community health center in Los Angeles. Dorit Rubinstein Reiss is a law professor at University of California, Hastings College of the Law.

President Biden’s emergency covid-19 mandates have faced an avalanche of legal challenges. Two of those mandates — the Occupational Safety and Health Administration’s rule that businesses with 100 or more employees must require workers to be fully vaccinated or regularly tested and the Centers for Medicare and Medicaid Services’ regulation requiring vaccinations for staff at health-care facilities — will soon face scrutiny from the Supreme Court.

The Supreme Court needs to uphold the president’s mandates without delay. Not doing so would be an affront to public health and the law.

Lower-court rulings that blocked the rules from taking effect were fundamentally flawed. (The president’s executive order requiring federal contractors to have a fully vaccinated workforce is currently blocked by courts in Kentucky and Georgia, but is not yet before the Supreme Court). They disregarded the broad scientific consensus that covid-19 poses a major public health threat requiring a strong emergency response; indeed, the public health emergency has only become more acute in recent weeks. The omicron variant is rising exponentially across the nation, pushing the hospital system beyond its capacity. More than 1,400 Americans are dying every day from covid-19. The justices need to weigh this grim reality.

A threshold issue is whether covid-19 is a public health emergency that warrants bypassing the usual cumbersome regulatory process. For the employer mandate, OSHA issued an emergency standard which can be implemented rapidly. For the rule involving health-care workers, CMS waived the normal period for taking public comment into consideration before issuing final regulations, a process that can take months if not years. Both had good reason for acting swiftly.

OSHA conservatively estimated its new rule would prevent more than 6,500 deaths and 250,000 hospitalizations. CMS established an impressive record showing the unique vulnerability of Medicare and Medicaid recipients, who are older, disabled, chronically ill or have complex health-care needs. The rule can save hundreds of lives each month. The science is also clear that the vaccine is the best way to ameliorate risks of covid-19 infections, hospitalizations and deaths. Delaying the implementation of the rules would cost lives.

At the core of these cases is the claim that Congress has not clearly authorized OSHA and CMS to safeguard workers. That’s incorrect. The Occupational Safety and Health Act empowers OSHA to mitigate “grave” workplace dangers through emergency measures. OSHA has required the only effective tools known to science: vaccines, testing and masks. Vaccination is the best tool, but OSHA allows employees to opt-out simply by testing weekly and masking. It’s hardly an overreach. In fact, regulating biological hazards is among OSHA’s primary responsibilities. The agency has a long history of regulating protections against airborne and bloodborne pathogens.

Likewise, when Congress established the Medicare and Medicaid programs, it granted the secretary of health and human services authority to require facilities to meet requirements deemed “necessary in the interest of the health and safety.” There are ample reasons to support the conclusion that vaccinations are necessary for the safe operation of participating facilities: the vulnerability of residents, the need for a healthy workforce and the unique effectiveness of vaccines.

There are good reasons Congress has chosen to delegate broad regulatory powers to agencies. Congress cannot foresee the broad range of risks Americans will face. Nor does Congress have the expertise or access to rapidly changing and complex scientific information needed to make wise regulatory decisions. Career agency professionals have the expertise — and can act more quickly with more flexibility — than the legislative process allows. The need to act rapidly is especially important in a health emergency. If the high court were to curb federal public health powers now, it could prove ruinous when the next crisis strikes.

The Supreme Court has a long history of upholding vaccination mandates, beginning with its seminal 1905 decision upholding smallpox vaccination and continuing with its 1944 ruling on the lawfulness of childhood vaccinations for school entry. Recently, the Supreme Court let stand a New York coronavirus vaccine mandate for health-care workers, even though it provided no religious exemption.

But these are all municipal or state mandates, and the court has been far more reticent to uphold federal health powers — for example, striking down the Centers for Disease Control and Prevention’s covid-19 eviction moratorium. The CDC arguably overreached with the moratorium, but regulating workplace safety is core to OSHA’s mission, as is regulating health-care safety to CMS.

A dire emergency is not the time to overturn decades of jurisprudence empowering federal agencies to act in the public interest. Justices should defer to the judgment of agency professionals, which represents the unquestioned scientific consensus. Vaccines offer the best, possibly the only, way to curtail the covid-19 pandemic.

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