The Supreme Court heard arguments Jan. 7 related to the Biden administration's vaccine mandate or test mandate on private employers.
The court will hear arguments on an application to stay the mandate pending judicial action on the merits.
This comes as a stay on the mandate issued by 5th Circuit Court of Appeals was reversed by the 6th Circuit on Dec. 17, reinstating the Occupational Safety and Health Administration’s (OSHA) mandate as multiple cases were consolidated. A number of business associations and state governments then quickly filed an application for the Supreme Court to stay the mandate.
Following arguments heard today, the conservative-majority Supreme Court appeared skeptical that the vaccine mandate was within the president’s legal power.
The first argument, delivered by National Federation of Independent Business (NFIB) Attorney Scott Keller, claimed OSHA should shift their focus to places with a heightened risk rather than issue a mandate on all workplaces. Allowing this to be implemented, he claimed, would give the agency limitless power to target dangers that exist in workplaces simply because they exist in the world at large.
“States can do this, individual companies can do it, but not OSHA,” Keller said.
The statement, met with disapproval from Democrat-appointed Justice Stephen Breyer, was followed by questions on how a stay could be in the public’s best interest as hospitalizations and cases approach record numbers.
Among arguments, Keller said a stay on the mandate is necessary to avoid high volumes of workers tendering their resignations, rather than complying with the orders. The effect of this, he said, will be an economic shift in the country with permanent worker displacement.
However, according to U.S. Solicitor General Elizabeth Prelogar, while a mask requirement would come into effect tomorrow, the mandatory testing requirement would not be in place until Feb. 9, making the threat of resignation less of an urgency.
The second case, presented by Ohio Solicitor General Benjamin Flowers, claimed the risk is not necessarily a workplace risk, stating there are better solutions to curb the impact on those who would be in grave danger. This is counter to the words of Prelogar, who argued in a filing for Friday’s hearing that OSHA's action was appropriate and would save thousands of workers’ lives and prevent hundreds of thousands of hospitalizations over the course of just six months.
“If everyone vaccinated is not in grave danger, a better solution is to require the people who are in grave danger to be vaccinated,” Flowers said during his argument.
Republican-appointed Justice Samuel Alito underscored the idea that the OSHA mandate may not be within the agency’s power, stating that while most OSHA mandates affect employees only when they are on the job, this one affects them in every aspect of their daily lives.
In OSHA's litigation update, the agency said it was "gratified" the stay was lifted by the 6th Circuit.
"To provide employers with sufficient time to come into compliance, OSHA will not issue citations for non-compliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard," OSHA announced. "OSHA will work closely with the regulated community to provide compliance assistance."
However, that could change again depending on the Supreme Court’s upcoming decision.
More than 180 Republican members of Congress submitted an amicus brief in support of the application to stay the mandate. The brief was organized by Sen. Mike Braun (R-IN), and signers included House Republican Leader Kevin McCarthy (R-CA), House Republican Whip Steve Scalise (R-LA), Senate Republican Leader Mitch McConnell (R-KY) and Senate Republican Whip John Thune.
In their brief, the lawmakers argue that OSHA promulgated "a sweeping, nationwide vaccine mandate on businesses intrudes into an area of legislative concern far beyond the authority of the agency."
They continue, stating that it was done "through OSHA’s seldom-used ‘emergency temporary standard’ (ETS) provision that allows for bypass of notice and comment rulemaking under certain circumstances," and "that OSHA exceeded its authority in enacting the ETS Mandate is not a ‘particularly hard’ question.”
