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Oral Arguments In Front Of SCOTUS on Covid Vaccine Mandates Held Today

Oral Arguments In Front Of SCOTUS on Covid Vaccine Mandates Held Today

In what turned out to be a day of demands for answers, some of the justices held what would be expected according to political leanings they held others were a surprise.

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The Liberal Justices

Kagon

The arguments started with Justice Kagon saying that he did not feel that the government was overstepping its bounds in setting up a mandate, but things quickly turned from there.

She had asked and stated:

“It’s an extraordinary use of power taking place in an extraordinary situation,” she says.

“We all know what the best policy is, we know the best way to stop spread is for people to get vaccinated, and to stop serious illness is for people to get vaccinated,” she says.

“The second best is to wear masks.”

“Why isn’t that necessary, what else should be done?” she asks Keller.

Breyer

Justice Breyer points to the increase in cases and hospitalizations across the country due to Omicron and asks how it can be in the public interest.

“How can it conceivably be in the public interest with three-quarters of a million people, I don’t know how many today, you have hospitalization figures growing by factors by 10, you have hospitalizations near the record, at the record…how can it be in the public interest, which is a requirement,” he says. “That’s what I want to hear the answer to.”

Keller warns in response: “This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs.”

He warns that only 28% of employers can find adequate weekly testing.  He also argues that if Congress intended for OSHA to have that kind of power, it should have clearly stated so.

This is a question that has been brought up if the government is mandating billions be spent by private businesses, who is responsible for covering this cost?

“The question isn’t what this country is going to do about COVID, it’s who gets to decide that,” he demanded of the government representatives.

Sotomayor

Justice Sotomayor is telling Keller that the OSHA vaccine requirement is not a mandate.

‘It’s something totally different,” she says.

This appears to be tapping into a claim that, because the mandate also allows for mandatory vaccinations to be substituted by weekly testing instead, it is therefore not a mandate.

OSHA says this in its Vaccination and Testing Emergency Temporary Standard (ETS) which covers employers with 100 or more employees.

“The ETS requires covered employers to establish, implement, and enforce a written mandatory COVID-19 vaccination policy with an exception for employers that instead establish, implement, and enforce a written policy that requires unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering at the workplace instead of vaccination.”

Ohio Solicitor General Benjamin Flowers, representing the coalition of GOP-led states opposing the OSHA rules, was quizzed by Justice Sotomayor on the mandates — which she again said was not a mandate.

She objected to his claim that Omicron represented a new situation than Delta, given its lesser severity in many instances, as well as his claim that vaccines appeared to be less effective at stopping transmission.

Sotomayor pointed to increased hospitalizations and said that “those numbers show that omicron is just as deadly for the unvaccinated.”

“We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators,” she said.

Justice Thomas, meanwhile, asks Flowers to speak more about the different risks and the vaccine’s effectiveness at stopping transmission.

He cites data saying vaccinated over 65s are twice as likely to die as 18-49 who are unvaccinated.

Sotomayor fires back and accuses him of “comparing apples to oranges” and says “lower risk is not no risk.” She also says that the unvaccinated put other people at risk.

Conservative Justices

Justice Amy Coney Barrett

Justice Amy Coney Barrett asks Keller if he is arguing the power is overly broad and if OSHA could require it for high-risk areas like dentistry, meatpacking, healthcare.

“This ETS is so far beyond healthcare and what Congress defined as high-risk workplaces,” he says

Barrett then asks if he would be here arguing against this standard if it was just masking and testing — no vaccines. He says yes because it is still a medical procedure

Even if it were just masking, he says that OSHA “doesn’t have the ability to set a nationwide COVID rule by emergency rule.”

“OSHA does not have that power,” he says.

She then started to demand when an end date of this power would end.

Justice Barrett asks the government how long OSHA intends to use the powers it has to bypass the notice-and-comment period of regulation, given that COVID-19 is now on its way to becoming endemic, and may last for years if not longer.

“When must OSHA resort to its normal authority and notice and comment?” she asks.

The government lawyer says that is not clear but assures the court that this is “not a way to bypass notice and comment permanently.”

Chief Justice Roberts 

Chief Justice Roberts demanded of the solicitor general for the Biden White House what he meant by claiming the Covid Mandate using OSHA was a workaround, he wanted to know what was this working around.

“I mean, this has been referred to the approach as a workaround. And I’m wondering what it is you’re trying to work around?” he asks.

Justice Thomas 

Justice Thomas asks the Biden administration’s lawyer whether there are other tools and methods OSHA could have used instead, rather than the vaccine mandate.

She says that the requirement is the “single most effective way of targeting” what OSHA is seeking to combat, including serious illness, transmission, etc.

“Vaccination provides protection on all of those fronts,” she says.

Justice Alito

Alito asks Prelogar about the side effects of vaccines in some instances, while strongly stressing that the vaccines are overwhelmingly safe.

Prelogar says that there are some adverse consequences, but minimal compared to COVID-19.

Alito asks if OSHA has ever imposed any other regulation that would impose potential adverse health effects on workers. Prelogar says it has not, but there is no reason to think the regulation is precluded on that ground.

Justice Kavanaugh

Kavanaugh, on the arguments that Congress has not authorized OSHA to make these mandates, notes that Congress has made explicit references to vaccines on a number of occasions in statute (but not in this instance), and he notes that President Bush made reference to a potential threat of this nature in 2005.

“Yet there has not been a vaccine statute passed by Congress to deal with this kind of thing,” he said.

The government lawyer says she believes Congress would have anticipated this as vaccines are often the single most effective way to target a virus and to stop its spread.

At this point we can figure out where the Justices were going with their line of questioning, it was obvious the liberal side of the bench was all for handing the government power, but the conservative side wanted more answers before they justify such a move, they also wanted a time period when this would end.

Justice Alito asks the government about a possible administrative stay. He notes that the mandate was issued on Nov 5. He, therefore, asks what difference a brief administrative stay of a few days would make, considering that the implementation could lead to job losses.

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The government says the court can enter the stay if it wishes but does believe there is a “grave danger” for every day the mandate is not in effect.

Breyer pushed back against the conservative justices, saying it will lead to thousands more hospitalizations.

It seems that Breyer was hell-bent on stripping civil rights if he felt there was a danger that was present.

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About The Author

Timothy Benton

Student of history, a journalist for the last 2 years. Specialize in Middle East History, more specifically modern history with the Israeli Palestinian conflict. Also, a political commentator has been a lifetime fan of politics.

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