{"id":1199794,"date":"2022-01-08T13:50:34","date_gmt":"2022-01-08T18:50:34","guid":{"rendered":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1199794"},"modified":"2022-01-08T13:50:42","modified_gmt":"2022-01-08T18:50:42","slug":"supreme-court-skeptical-of-biden-vaccine-mandates-decision-within-days","status":"publish","type":"post","link":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/supreme-court-skeptical-of-biden-vaccine-mandates-decision-within-days\/","title":{"rendered":"Supreme Court Skeptical of Biden Vaccine Mandates, Decision Within Days"},"content":{"rendered":"<aside class=\"mashsb-container mashsb-main mashsb-stretched\"><div class=\"mashsb-box\"><div class=\"mashsb-count mash-medium\" style=\"float:left\"><div class=\"counts mashsbcount\">20<\/div><span class=\"mashsb-sharetext\">SHARES<\/span><\/div><div class=\"mashsb-buttons\"><a class=\"mashicon-facebook mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/www.facebook.com\/sharer.php?u=https%3A%2F%2Fwww.conservativenewsdaily.net%2Fbreaking-news%2Fsupreme-court-skeptical-of-biden-vaccine-mandates-decision-within-days%2F\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Facebook<\/span><\/a><a class=\"mashicon-twitter mash-medium mash-nomargin mashsb-noshadow\" href=\"https:\/\/twitter.com\/intent\/tweet?text=&amp;url=https:\/\/www.conservativenewsdaily.net\/breaking-news\/?p=1199794&amp;via=ConservNewsDly\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Twitter<\/span><\/a><a class=\"mashicon-subscribe mash-medium mash-nomargin mashsb-noshadow\" href=\"#\" target=\"_top\" rel=\"nofollow\"><span class=\"icon\"><\/span><span class=\"text\">Subscribe<\/span><\/a><div class=\"onoffswitch2 mash-medium mashsb-noshadow\" style=\"display:none\"><\/div><\/div>\n            <\/div>\n                <div style=\"clear:both\"><\/div><\/aside>\n            <!-- Share buttons by mashshare.net - Version: 4.0.47--><p class=\"subheading\">WASHINGTON, DC \u2013 Vaccine mandates had a rough day at the Supreme Court Friday, as the justices appear poised to block President Joe Biden\u2019s large employer vaccine mandate, though the fate of Biden\u2019s healthcare provider mandate remains unclear.<\/p>\n<p>Pursuant to Biden\u2019s expressed wishes, federal agencies have been exploring how many Americans they could order vaccinated without Congress\u2019s inserting a vaccine mandate into one of its coronavirus-response laws. (Think trying to impose Obamacare\u2019s individual mandate without Congress ever passing the Affordable Care Act.) The Supreme Court heard challenges to two of those mandates Friday.<\/p>\n<figure id=\"D-ROS-B1\" class=\"a8d\"><\/figure>\n<figure id=\"M-ROS-B1\" class=\"a8d\"><\/figure>\n<figure id=\"gmxrevmore\" class=\"H\"><\/figure>\n<p>First was the Occupational Safety and Health Administration (OSHA), a component of the U.S. Department of Labor, which issued a Emergency Temporary Standard (ETS) mandating employers with 100 or more employees to require their employees to get vaccinated. The employer must either fire any employee who refused or pay a crippling penalty, beginning January 10.<\/p>\n<p>\u201cThe government is trying to work across the waterfront, and is just going agency by agency,\u201d Chief Justice John Roberts \u2013 considered a swing vote in these legal challenges \u2013 observed. He said the administration\u2019s actions amounted to a \u201cworkaround. I\u2019m just trying to figure out what you are trying to work around.\u201d<\/p>\n<p>\u201cIt seems to me that the more and more mandates that pop up in different agencies, I wonder if it\u2019s not fair for us at the court to look at a general exercise of power by the federal government,\u201d Roberts continued, adding that the court should, \u201cthen ask, \u2018Well, why doesn\u2019t Congress have a say in this? And why isn\u2019t it the primary responsibility of the states?\u2019\u201d<\/p>\n<figure id=\"M-ROS-B2\" class=\"a8d\"><\/figure>\n<p>\u201cSeems like the sort of things that states are responding to, or should be,\u201d added Roberts, \u201cor that Congress is responding to, or should be.\u201d<\/p>\n<p>Justice Clarence Thomas seemed to reject the Biden Justice Department\u2019s claim that 29 U.S.C. \u00a7 655(c) \u2013 the federal statute for OSHA to issue an ETS \u2013 could authorize a vaccine mandate.<\/p>\n<p>\u201cWhen OSHA itself has never mandated vaccines or even testing before \u2026 all of those are factors in the scope of what OSHA could do here,\u201d Thomas explained.<\/p>\n<p>Thomas went on to add that the Federal \u201cGovernment could have had notice and comment,\u201d referring to the normal legal process for agencies, including OSHA, to issue regulations, requiring months of public comment and participation, giving companies a chance to voice their concerns and forcing the agency to build a public record for legal review.<\/p>\n<p>\u201cWhy isn\u2019t this necessary to abate the grave risk?\u201d asked Justice Elena Kagan, clearly supporting the mandate and citing the fact that over a million people have died from Covid.<\/p>\n<figure id=\"M-ROS-B3\" class=\"a8d adSo\"><\/figure>\n<p>Accomplished Supreme Court litigator Scott Keller, representing the National Federation of Independent Business (NFIB) in its challenge to the OSHA mandate, explained that federal law imposed both restrictions and strict conditions when an agency is \u201cwielding what is a delicate and extraordinary power.\u201d<\/p>\n<p>\u201cThe question is not what is this country is going to do about COVID,\u201d Keller later added. \u201cThe question is who gets to decide it.\u201d<\/p>\n<figure id=\"D-ROS-B2\" class=\"a8d\"><\/figure>\n<p>When later responding to a series of hostile questions from Justice Sonia Sotomayor, Keller explained that even the federal government admits that up to 3 percent of employees will quit as a consequence of the ETS if it is not blocked, which would be over 2 million jobs.<\/p>\n<div id=\"attachment_18816210\" class=\"wp-caption alignnone\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-18816210\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/11\/vaccine-protest-no-jobs-california-getty.jpg\" alt=\"\" width=\"640\" height=\"480\" \/><\/p>\n<p class=\"wp-caption-text\">Protesters stand next to a sign during an anti-vaccination rally at the Golden Gate Bridge on November 11, 2021 in San Francisco, California. (Photo by Justin Sullivan\/Getty Images)<\/p>\n<\/div>\n<p>\u201cCongress and states and governors wielding emergency powers\u201d might be able to impose such vaccine mandates, Keller conceded, but federal agencies cannot do so by executive fiat.<\/p>\n<figure id=\"M-ROS-B4\" class=\"a8d adSo\"><\/figure>\n<p>Justice Brett Kavanaugh focused his questions on the major questions doctrine, under which Congress must speak with clear authorizing language when it seeks to give an agency power to issue regulations of vast political and economic significance, if the Constitution permits Congress to do so at all.<\/p>\n<p>\u201cThe difficulty is applying it is determining when something is major enough,\u201d Kavanaugh explained. \u201cWhat should we look at to say this one is the kind of rule \u2026 that we should consider major?\u201d<\/p>\n<p>Keller answered that the court should look at the \u201csize and scope\u201d of the regulation, noting that here it would dictate the fate of 1.8 million businesses and 84 million employees, easily qualifying as a matter of \u201cvast political and economic significance.\u201d<\/p>\n<p>\u201cIs this the agency that has expertise over communicable diseases?\u201d Keller asked rhetorically, saying that too is a factor as to whether OSHA has this power. \u201cNo, it is not.\u201d<\/p>\n<p>Justice Neil Gorsuch made the point during argument that \u201cit\u2019s not that judges are supposed to decide questions of public health,\u201d but that the court\u2019s role in this challenge to OSHA\u2019s mandate is to \u201cmake sure the proper party does.\u201d<\/p>\n<p>Ohio Solicitor General Benjamin Flowers also participated in oral arguments, representing 27 states \u2013 a majority of the nation \u2013 likewise challenging OSHA\u2019s legal authority. He cited the constitutional doubt doctrine to say that Congress could not have conferred such staggering power to OSHA, explaining, \u201cThere are limits to how much authority Congress can give away.\u201d<\/p>\n<p>Justice Sonia Sotomayor aggressively defended OSHA\u2019s power, participating by phone instead of entering the courtroom.<\/p>\n<p>\u201cThose numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did,\u201d Sotomayor said, sparking instant online criticism and <a href=\"https:\/\/www.breitbart.com\/health\/2022\/01\/07\/fact-check-justice-sotomayor-claims-omicron-just-as-deadly-for-the-unvaccinated-as-delta\/\">earning<\/a> a fact check from Breitbart. \u201cWe have over 100,000 children \u2013 which we\u2019ve never had before \u2013 in serious condition and many on ventilators.\u201d (The fact check revealed the number of children in hospital care is around 3,000, and that omicron appears much less severe than delta, observations confirmed by various other medical experts responding after arguments.)<\/p>\n<p>After getting U.S. Solicitor General Elizabeth Prelogar to agree that the Biden administration would not object if the court needs to issue a multi-day administrative stay \u2013 effectively a temporary pause \u2013 to block the OSHA mandate to finish writing its decision in this case, Justice Samuel Alito raised several objections to the ETS.<\/p>\n<p>\u201cOn the issue of whether you\u2019re trying to squeeze an elephant into a mousehole \u2026 most OSHA regulations \u2026 affect employees when they are on the job, not when they are off the job,\u201d Alito noted, using language associated with the major questions doctrine. \u201cIsn\u2019t this different from anything OSHA has ever done in that respect?\u201d<\/p>\n<p>After forcing Prelogar to agree that there is some degree of medical risk to some individuals from the vaccine, Alito pressed further, \u201cHas OSHA ever imposed any other safety regulation that imposes some extra risk, some different risk on the employee?\u201d<\/p>\n<div id=\"attachment_19039178\" class=\"wp-caption alignnone\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-19039178\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2021\/12\/GettyImages-1299345973.jpg\" alt=\"A Los Angeles Fire Department (LAFD) firefighter receives a Moderna COVID-19 vaccination dose from firefighter Michael Perez (L) at a fire station on January 29, 2021 in Los Angeles, California. LAFD has recorded a \u2018sharp decline\u2019 in coronavirus cases after firefighters began receiving the vaccine shots on December 28. (Photo by Mario Tama\/Getty Images)\" width=\"640\" height=\"480\" \/><\/p>\n<p class=\"wp-caption-text\">A Los Angeles Fire Department (LAFD) firefighter receives a Moderna COVID-19 vaccination dose in Los Angeles, California. (Photo by Mario Tama\/Getty Images)<\/p>\n<\/div>\n<p>Alito balked when Prelogar tried to argue that employers could substitute a masking and testing regime as an alternative to vaccines, noting the well-known shortage of tests, asking, \u201cIs the testing alternative viable at the present time?\u201d<\/p>\n<p>\u201cTraditionally, states have had responsibility for vaccine mandates,\u201d Gorsuch began as he voiced numerous concerns about OSHA doing this as an ETS rather than leave the matter to Congress. \u201cCongress has had a year to enact a vaccine mandate already.\u201d<\/p>\n<p>\u201cTraditionally, OSHA has had rules that apply to workplace hazards,\u201d he mentioned as another objection, \u201cnot \u2026. 24 hours a day,\u201d which is what a vaccine would amount to.<\/p>\n<p>\u201cOSHA did not adopt this rule in response to an emergency, which has been going since 2020\u2026 Facts will continually change,\u201d Justice Amy Coney Barrett said to Prelogar, exploring a separate series of objections. \u201cWhen does the emergency end?\u2026 Two years from now, do we have any reason to believe that COVID will be gone? \u2026When must OSHA actually resort to its regular authority, and go through notice and comment?\u201d<\/p>\n<p>The court also heard arguments to the vaccine mandate issued by the Centers for Medicare and Medicaid Services (CMS), the component of the U.S. Department of Health and Human Services (HHS) that funds those massive federal programs. That mandate requires 10.2 million healthcare workers to get vaccinated, or their employers would be ineligible to receive CMS dollars \u2013 which would bankrupt countless doctors and hospitals.<\/p>\n<p>Currently, the CMS mandate has been blocked by various court orders in 25 states, but it is fully enforceable in the remaining 25 states.<\/p>\n<p>\u201cDo the states have clear notice\u201d that by signing up for Medicaid, the federal government could impose a vaccine mandate on those states\u201d Alito pressed U.S. Deputy Solicitor General Brian Fletcher as the latter attempted to defend the CMS mandate. Alito questioned what provision in federal law said HHS is \u201cauthorized to protect the health and welfare\u201d of people, asking, \u201cIs there any limit to that power?\u201d<\/p>\n<p>\u201cYou are required by statute to consult with states,\u201d Alito further noted, adding that it would be odd if federal law was written to authorize what happened here, whereby the federal government imposes a mandate on the states, then talks to the states only after the fact, and called such an exchange a \u201cconsultation.\u201d<\/p>\n<p>\u201cThe [HHS] Secretary shall not control the tenure of employees\u201d at Medicaid providers, Justice Neil Gorsuch quoted from the federal law HHS claimed as its authority, asking Fletcher why the CMS mandate does not violate that restriction on HHS, given that employers would be required to fire employees who are unvaccinated.<\/p>\n<div id=\"attachment_13757437\" class=\"wp-caption alignnone\"><img loading=\"lazy\" decoding=\"async\" class=\"size-full wp-image-13757437\" src=\"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-content\/uploads\/2022\/01\/Supreme-Court-Justice-Neil-Gorsuch-9192019-LBJ-Library-Flickr.jpg\" alt=\"Sept. 19, 2019, U.S. Supreme Court Justice Neil Gorsuch spoke at the LBJ Presidential Library\" width=\"640\" height=\"480\" \/><\/p>\n<p class=\"wp-caption-text\">LBJ Library\/Flickr<\/p>\n<\/div>\n<p>Gorsuch also said to Fletcher that the federal government \u201ccan\u2019t use money to commandeer\u201d the states into administering a federal program, pressing him to explain why this mandate does not cross that Tenth Amendment limit on federal power.<\/p>\n<p>After tough questions on both sides, it was not clear whether the same majority of the justices who seemed to oppose the OSHA mandate were also united in their opposition to the CMS mandate.<\/p>\n<p>Decisions usually come down months after argument. But in this extremely unusual instance of hearing arguments over stay applications, decisions should be expected within a couple weeks, if not days.<\/p>\n<p>Given Prelogar\u2019s concession to Alito, it is also possible that the court could grant an administrative stay before Monday to prevent the OSHA mandate from going into effect while the justices finish writing their decision.<\/p>\n<p>The applications in the first hour\u2019s arguments were <em>NFIB v. OSHA<\/em>, No. 21A244 and <em>Ohio v. Dep\u2019t of Labor<\/em>, No. 21A247, and the second hour\u2019s arguments were <em>Biden v. Missouri<\/em>, No. 21A240 and <em>Becerra v. Louisiana<\/em>, No. 21A241 in the Supreme Court of the United States.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>WASHINGTON, DC \u2013 Vaccine mandates had a rough day at the Supreme Court Friday, as the justices appear poised to block President Joe Biden\u2019s large employer vaccine mandate, though the &#8230;<\/p>\n","protected":false},"author":386,"featured_media":2315279,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_mo_disable_npp":"","fifu_image_url":"","fifu_image_alt":"","footnotes":""},"categories":[],"tags":[],"class_list":["post-1199794","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1199794","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/users\/386"}],"replies":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/comments?post=1199794"}],"version-history":[{"count":0,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/posts\/1199794\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media\/2315279"}],"wp:attachment":[{"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/media?parent=1199794"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/categories?post=1199794"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.conservativenewsdaily.net\/breaking-news\/wp-json\/wp\/v2\/tags?post=1199794"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}