In oral arguments lasting nearly twice as long as expected, until 1:39pm today, there appeared to be a majority to block Biden’s employer vaccine mandate, while the Center for Medicare and Medicaid Services (CMS) vaccine mandate imposed on health workers will unfortunately probably be upheld.
Our general counsel emphasized in his amicus brief against the CMS vaccine mandate that the vaccine approach is a “colossal failure.” Two justices – Alito and Thomas – expressed awareness of harm caused by vaccines or alternatives to vaccination. Justice Alito indicated he expected distortion of his daring to merely ask about harm from the vaccine.
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The three Democrat-appointed justices expressed their dismay that anyone would seek to block a Covid vaccine mandate. But even more justices implied that the sweeping employer mandate should be addressed by the States or by Congress, not by a mere agency (Occupational Safety and Health Administration – OSHA) acting under a vague old statute.
Based on the questioning this morning, it appears that the OSHA vaccine mandate against employers is likely to be blocked, while the CMS mandate is likely to survive. Chief Justice Roberts’ questioning implied that he will be the fourth vote to uphold the CMS vaccine mandate, while additional votes appear likely due to doubt about the legal standing of States to oppose CMS on this.
Several justices did voice skepticism about the CMS vaccine mandate. Justice Alito pointed out that CMS is obligated by statute to consult with States before issuing such a mandate, which CMS did not do. The government attorney incredibly responded that the consultation requirement does not say that it must consult before it imposes the mandate!
The government attorney further insisted that “any temporary staffing shortages are likely to be minor” due to the vaccine mandate against medical workers, and that any “marginal additional” staffing shortages are outweighed by the alleged need to impose the CMS vaccine mandate, which he claimed will save lives.
Justice Gorsuch pointed out that Section 1395 of the Medicare Act commands that the federal government shall not generally “control” employment, workers’ tenure and compensation, and the practice of medicine. CMS has never before ordered vaccines or, for that matter, exercise regimes, sleep habits, or medicine that must be taken by workers.
Justice Kavanaugh questioned whether the more than $1 billion in new costs imposed by the CMS vaccine mandate would really be funded by the federal government. He asked why CMS has not previously required flu shots for workers if it thinks it has the authority to require Covid vaccines today. But Kavanaugh, like Thomas, questioned whether States really have standing to object, which is a way the Court could dismiss this challenge.
Justice Barrett questioned whether CMS really has authority under the Social Security Act to do this. She is potentially the swing fifth vote on the CMS mandate issue, although it seems likely to be upheld based on legal standing.
An attorney for the States, which argued against the vaccine, disputed that there is statutory authority for CMS’s mandate, and pointed out that its rule is arbitrary and capricious, and will particularly hurt rural communities due to worker shortages.
Justice Kagan said that the government is paying for these services, saying that if you want “my money” (and calling federal money “its money”), then CMS can require the Covid vaccine. She was dismissive about shortages at (many) small hospitals, describing it merely as a “rural hospital” question.
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