The U.S. Supreme Court. Photo from Supreme Court website.
Ohio led arguments Friday on behalf of 26 other Republican-led states opposing a workplace vaccination mandate before the U.S. Supreme Court. But Ohio’s solicitor general, Ben Flowers, didn’t appear in person. Despite getting vaccinated and boosted, Flowers tested positive for COVID-19 as part of the court’s testing requirements.
The policy in question, proposed by the Occupational Safety and Health Administration, would require vaccines or regular testing for employers with more than 100 workers. It has been tied up in litigation since it was proposed last November.
In oral arguments, Flowers described the regulation as a “blunderbuss” approach that goes beyond the scope of the agency’s authority. Scott Keller, who argued on behalf of the National Federation of Independent Businesses, said it would force businesses to become “de facto public health agencies.”
In a press conference after the arguments, Attorney General Dave Yost did his best to put the focus on the mandate rather than the vaccine itself.
“This is a case about the law, and the law here is important,” Yost argued. “It’s not about what the best course of action is. That’s for the policy branches of our government to decide.”
“COVID vaccines are safe and effective. I urge everyone to get vaccinated and boosted,” Yost said. “But that doesn’t mean OSHA can mandate them.”
Details: https://t.co/bvXAVsezUm pic.twitter.com/vEngi1sQmU
— Ohio Attorney General Dave Yost (@OhioAG) January 7, 2022
The attorneys raised a number of other objections in their arguments before the bench: The agency improperly relied on an emergency process; Congress should weigh in explicitly for such a monumental action; and the danger presented by COVID-19 isn’t “grave” enough to impose an economy-wide mandate.
On that last point Justice Elena Kagan seemed flabbergasted.
“This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day; more and more people are getting sick every day,” Kagan said. “I don’t mean to be dramatic here. I’m just sort of stating facts, and this is the policy that is most geared to stopping all this.”
Justice Stephen Breyer was similarly skeptical.
“Can you ask us, is that what you’re doing now? To say it’s in the public interest in this situation, to stop this vaccination rule with nearly a million people — let me not exaggerate — nearly three quarters of a million people, new cases every day,” Breyer said. “I mean, to me, I would find that unbelievable.”
Keller argued back that Congress, state legislatures, and governors have the authority to impose emergency health orders. He added that OSHA, with expertise in regulating workplaces, is an unlikely vehicle for health provisions when there are agencies like Health and Human Services, the FDA and the CDC.
Flowers meanwhile told the court there are limits to the authority Congress can hand off to agencies, and that if OSHA’s argument was carried to its logical conclusion, it would be among the broadest delegations of authority in federal law. The court has a 100-plus year precedent for upholding government-imposed vaccine mandates, but imposing those requirements through an executive agency’s delegated authority could be a sticking point for some justices.
“With respect to these major questions that are going to affect people from coast-to-coast and cost millions and millions of dollars and potentially many jobs and potentially affect public health,” Flowers said. “We would expect Congress, or we would demand Congress, to at least speak clearly before we will say an agency can exercise that power.”
Justice Brett Kavanaugh seemed particularly keen to hear more about this point, and urged him to expand on the value of Congress weighing in.
Other conservatives on the bench keyed in on different issues. Justice Clarence Thomas brought up the higher burden that comes with emergency action. Justice Samuel Alito asked about who the order is meant to protect — the general public, workers, or just unvaccinated workers. Chief Justice John Roberts pressed the attorney representing OSHA about similar, narrower mandates proposed through other authorities.
“It’s a little hard to accept the idea that this is particularized to this thing,” Roberts said. “That it’s an OSHA regulation, and it’s a CMS regulation, that it’s a federal contractor regulation. It seems to me that the government is trying to work across the waterfront, and it’s just going agency by agency.”
While Yost insisted getting vaccinated is important, encouraged people to do so, and noted he’d gotten the shot and booster, he argued agencies don’t have the kind of power OSHA’s emergency rule asserts.
“If the separation of powers means anything, if checks and balances mean anything, it means that the executive branch is not allowed to have all the power in the world just because there’s a crisis,” Yost said.
But beyond arguing for a lawmakers, rather than bureaucrats, to make the decision, Yost was vague about what policies would, or wouldn’t, meet constitutional muster. He explained, for instance, that he might oppose Congressional action if it violated federalism doctrine.
Clara Osterhage joined Yost’s press conference after the arguments. She employs about 630 workers at more than 80 Great Clips franchises, and she sits on the NFIB Ohio leadership council. She said the mandate would cost her employees.
“On a good day, if I’m lucky, I’ve got five or six people working in a salon,” Osterhage said. “But because of the arbitrary 100 number, I am obliged to comply with this rule as it exists. The problem is that the barbershop down the road from me, which may also have four or five people working, an employee could leave me, and go there and be fine, and not be caused to either vax or test and mask.”
In its briefs, OSHA acknowledges some workers may leave instead of getting vaccinated. But the agency argues the experience of private companies that have demanded vaccinations suggests the number who actually follow through with quitting will be vanishingly small. They note more than 99% of United Airlines employees got vaccinated and 96% of Tyson Foods’ staff got shots.
Other large firms have proposed vaccine mandates of their own, but it seems some have gotten cold feet without the federal mandate providing a bit of cover. This summer, every Columbus-area hospital system announced vaccine requirements. Most have followed through, but OhioHealth decided to pause enforcement last month.
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