Challenge to coronavirus requirements is courting public health disaster

Conservative Supreme Court justices appeared skeptical about President Biden’s legal authority to impose a broad coronavirus vaccination-or-testing requirement on large employers but there seemed to be approval of the administration’s vaccine mandate for personnel at health care facilities that receive federal Medicaid and Medicare funds.

Private businesses and 27 Republican-controlled states are challenging Biden’s most ambitious plan to fight the pandemic, arguing that OSHA’s proposed action was beyond a federal agency’s powers.

Justice Stephen G. Breyer noted that there were “nearly three-quarters of a million people, new cases” every day and said, “I would find it, you know, unbelievable that it could be in the public interest to suddenly stop these vaccinations.”

“More and more people are dying every day. More and more people are getting sick every day,” said Justice Elena Kagan. “This is the policy that is most geared to stopping all this.”

Such a workplace requirement “sounds like the sort of thing that states will be responding to or should be, and that Congress should be responding to … rather than agency by agency, the federal government, the executive branch acting alone,” said Chief Justice John G. Roberts Jr.

Some of the justices who expressed doubt about the general workplace requirements seemed more open to the idea that federal officials could require workers to get vaccinated for the coronavirus if they are paid by Medicaid and Medicare.

The nation’s top court is considering emergency petitions whether to allow the regulations to go into effect or to stop them in two cases where both sides asked the court to act quickly.

Oral arguments on the emergency requests lasted more than three and a half hours, underscoring the national debate over the threat of the coronavirus and the political division over how much government can do to require citizens to be vaccinated.

There was a real-time dynamic as well. Besides the impending deadlines, some justices came armed with the latest numbers on the surging omicron variant, and their very actions displayed their concern.

All of the justices have been vaccinated and received boosters, but for the first time since they resumed in-person arguments, all began Friday’s session masked, with the exception of Justice Neil M. Gorsuch.

Like his predecessor Antonin Scalia, Gorsuch believes the US Constitution should be construed as it was by its original drafters despite the fact that he attended Harvard Law School with former President Barack Obama.

Justice Sonia Sotomayor, who is 67 and was diagnosed with diabetes as a child, participated remotely from her chambers.

In weighing previous challenges to coronavirus restrictions and requirements, the court has been largely deferential to states — but skeptical of the powers of federal agencies.

That seemed to be the case when the court considered the rule proposed by the Occupational Safety and Health Administration (OSHA), which would cover about 80 million workers.

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