The Washington PostDemocracy Dies in Darkness

Biden administration defends its authority on vaccine policies to Supreme Court

(Ricky Carioti/The Washington Post)

The Biden administration told the Supreme Court on Thursday that federal law gives it the authority to impose a nationwide vaccine-or-testing requirement for large employers, and the court should not stand in the way of a program that will save thousands of lives.

“The nation is facing an unprecedented pandemic that is sickening and killing thousands of workers around the country, and any further delay in the implementation of the [requirement] will result in unnecessary illness, hospitalizations, and deaths because of workplace exposure” to the coronavirus, Solicitor General Elizabeth B. Prelogar wrote in a filing.

The Supreme Court has announced a special hearing on Jan. 7 to consider challenges to the rules from the Occupational Safety and Health Administration. It was upheld by a panel of the U.S. Court of Appeals for the 6th Circuit earlier this month, but is being challenged by a coalition of business groups and Republican-led states.

Supreme Court sets special hearing on Biden administration vaccine policies

Also that day, the high court will hear a similar challenge to a vaccine mandate imposed by the Centers for Medicare & Medicaid Services; it requires shots for health-care workers at facilities that receive federal funds tied to those programs.

Together, the administration policies represent a major expansion of the Biden administration’s battle with the coronavirus, covering nearly 100 million workers — many of whom were vaccinated on their own.

It also represents, according to the Republican and business challengers, a vast overreach on the part of the executive branch and a misguided policy that will do more harm than good.

The mandate on health-care workers “is plainly unlawful,” said a brief filed by 14 Republican-led states, as well as bad policy.

“Across the country, healthcare workers are already far too scarce,” said the brief. “This new mandate worsens the problem, sidelining providers, professionals, and support staff who have led the fight against COVID-19. And, as is often the case, rural communities — already straining from threadbare resources — will bear the brunt of these consequences.”

More than half the states and coalitions of business and other interest groups are asking the justices for emergency action to block the OSHA rules, which would cover an estimated 80 million workers.

Appeals court reinstates Biden vaccine plans for workers

Prelogar said it is wrong for those opposed to the OSHA emergency temporary standards to refer to them as a vaccine mandate.

It mandates those who employ more than 100 workers to either require vaccination or have unvaccinated employees wear masks and be regularly tested. There are exemptions for those who work exclusively at home, alone or outdoors.

OSHA estimates that the standard will “save over 6,500 worker lives and prevent over 250,000 hospitalizations over the course of six months,” Prelogar wrote.

Even though the 6th Circuit panel upheld OSHA’s authority, the administration is delaying implementation of the standard until February as the legal fights continue. The business groups and Republican states are asking the Supreme Court to keep the standard from going into effect.

They say the agency is seeking unprecedented power that the law does not authorize.

But Prelogar said the opposite is true. She said OSHA “must” take action when it determines employees are exposed to grave danger.

“The standard falls squarely within that grant of authority,” she wrote. “SARS-CoV-2 is both a physically harmful agent and a new hazard; indeed, it has killed more than 800,000 individuals and made millions more seriously ill in the United States alone.”

And, she noted, “the virus manifestly poses a grave danger to unvaccinated workers, who face significant risks from workplace exposure because they are substantially more likely to become infected with COVID-19 and to suffer severe health consequences as a result.”

The Supreme Court generally has been supportive of decisions by local governments and universities to require vaccination.

But the justices also have been skeptical of federal agencies’ power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention, saying it was beyond the agency’s authority.

Supreme Court strikes down nationwide eviction moratorium

The Republican states in their filings Thursday against the health-care worker vaccine mandate said it was another overreach by the federal government, and that President Biden himself has vacillated on whether pandemic responses were best handled at the federal or state level.

The agency responsible for the vaccine mandate “assumes sweeping new federal power over individuals even though Congress has never claimed such expansive authority for itself and even though the Executive Branch expressly disclaimed it only five months ago,” said the states’ brief.

They said the agency “ignored and undermined” federal law and “rearranged the Constitution’s structures of federalism and separation of powers.”

In the health-care worker case, it is the Biden administration that went to the Supreme Court after lower courts agreed with the challengers.

It is unusual for the Supreme Court to hold a hearing in such emergency requests. But the court has been criticized for decisions issued under its emergency docket, which has also been called its “shadow docket.”

The hearing will mark the third time this term the court has scheduled public arguments. The previous cases involved a controversial Texas law that restricts abortion, and the other concerned the rights of inmates to have spiritual advisers close by at the time of execution.

The health-care worker cases are Biden v. Missouri and Becerra v. Louisiana. The OSHA cases are National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor.