There’s been a lot of back-and-forth about the efficacy of the Covid-19 vaccine – which, reminder, while everybody here is highly educated in law, nobody is an epidemiologist – and Justice Elena Kagan went hard at Ohio solicitor general Ben Flowers.
“You said we understand that 18 to 29 year olds, even though they’re not going to die or end up with very serious injuries, they can spread. You don’t doubt that, that they can spread to other people who are more vulnerable?” Kagan asked Flowers.
“That’s right,” Flower said.
“All right,” Kagan said, cutting him off. “Then you say the danger is to other unvaccinated people, older people, immunocompromised people. And you seem to say that the causes to other unvaccinated people, they assume the risk and the agency’s power runs out.”
Leah Litman
(@LeahLitman)Ohio SG says nonsense in response; Justice Kagan can barely disguise disdain in her “thank you.”
Anthony Michael Kreis
(@AnthonyMKreis)The argument that if people are vaccinated they are removed from the danger and thus the unvaccinated are just a danger to themselves, thus there’s no grave danger, is inconsistent with everything we know about breakthrough cases and vaccinated persons with underlying conditions.
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There appears to be some hedging now in the arguments against the federal vaccine-or-test mandate that not every workplace is at high-risk for Covid-19 spread as others, and therefore shouldn’t be subject to a mandate that requires regular testing or vaccinations.
Steven Mazie
(@stevenmazie)Barrett and Roberts seem to want to say: OSHA can mandate vaccines/tests for SOME industries with truly high-risk workplaces but not for ALL.
Still early, but this OSHA mandate seems fragile in this Court.
“I would have thought every workplace was affected by Covid,” Justice Elena Kagan said. “I’m trying to figure out why this is a blunderbuss approach when everybody knows every workplace has been affected by Covid.”
Ohio solicitor general Ben Flowers, who is arguing against the mandate before the supreme court today remotely because he tested positive, responded that even if every workplace has been affected by Covid, it doesn’t make it a workplace risk, it makes a societal risk – he compared it to terrorism.
Scott Keller, the solicitor general of Texas and the attorney arguing against the federal vaccine-or-test mandate, has said Osha (the Occupational Safety and Health Administration) estimates that 1 to 3% of employees will quit if they are either required to test regularly or be vaccinated.
He pointed out that such a loss in the workforce would have a terrible effect on the economy.
“Catching Covid keeps people out of the workplace for extraordinary periods of time,” Justice Sonia Sotomayor said. She also made a note about the unprecedented number of deaths the country is experiencing at the moment as well.
Steven Mazie
(@stevenmazie)Soto: some states are stopping employers from requiring vaccines or masks! why shouldn’t there be a national rule to protect workers?
K: Congress would have to provide that explicitly.
Soto: I don’t know how much clearer Congress can be than “do what’s necessary”!
Leah Litman
(@LeahLitman)Justice Sotomayor: What’s the difference between this and requiring employers to require employees wear masks in a workplace when sparks fly?
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Scott Keller, the solicitor general of Texas and the attorney arguing against the federal vaccine-or-test mandate, is asking for the supreme court to issue a stay for when the requirement goes into effect Monday.
The argument so far is that the federal government is abusing its power in issuing this mandate and that it shouldn’t be up to the federal government to require this. Keller said the effect such a mandate would have on the economy would be detrimental.
Steven Mazie
(@stevenmazie)Keller begins: the mandate covering 84m Americans will cause widespread labor shortages and is “one size fits all” when some workplaces are higher risk and others are lower risk
“We understand the gravity of the situation, but in balancing the shear size and scope of this emergency power that is supposed to be exercised delicately…we are entitled to a stay,” Keller said.
Justice Stephen Breyer asked, “How could it not be in the public’s interest?”
Lawrence Hurley
(@lawrencehurley)Breyer: “There were ¾ of a million new cases yesterday”
“That’s ten times as many as when OSHA put this rule in.”
Anthony Michael Kreis
(@AnthonyMKreis)Breyer, J.: “Are you really asking this Court… to issue a stay from taking effect. Like issue a stay today? …there were three-quarter of a million new cases yesterday that was ten times more than when OSHA put in this ruling, the hospitals are full…”
Wow. One of the attorneys arguing against the federal vaccine-or-test mandate is presenting his case to the supreme court remotely today because he tested positive for Covid-19.
Greg Stohr
(@GregStohr)Ohio SG Ben Flowers tested positive for Covid, per @KimberlyRobinsn. That’s why he’s arguing remotely today against Biden workplace vaccine rule. His office says he originally tested positive after Christmas and virus was still detected yesterday.
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Justice Elena Kagan asks why this current situation – the coronavirus pandemic that has killed more than 832,000 people in the US – doesn’t count as “necessary and grave”.
Chris Geidner
(@chrisgeidner)Kagan: “Mr. Keller, I don’t understand the point. … Whatever ‘necessary’ means, whatever ‘grave’ means …” why isn’t this it?
“What else should be done?” Kagan asked. “It’s obvious the policy that’s geared to preventing the most sickness and death and the agency has done everything but stand on its head to show that no other policy will prevent sickness and death like this one will.”
The supreme court is now in session.
SCOTUSblog
(@SCOTUSblog)During today’s oral arguments over Biden vaccine policies, Sonia Sotomayor will participate from her chambers remotely, and two of the six lawyers will argue by telephone, a court spokesperson says.
Our business live blog is reporting that the US added 199,000 new jobs in December, a weaker showing than expected. However, the US unemployment rate has dropped to 3.9%.
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US supreme court to hear vaccine mandate arguments
Greetings, live blog readers. Congrats on making it through the first week of the new year.
We kick off today with the supreme court set to begin hearing arguments from Republican state officials and business groups seeking to block the federal vaccine mandate for employers with more than 100 workers and a similar requirement for healthcare facilities.
The at least two hours of arguments for the two cases are scheduled to start at 10am local time. Because of pandemic protocols, the building is closed to the public, but we will be streaming the oral arguments here.
To recap: last year the Biden administration put in place a mandate requiring that all employers with more than 100 workers and all healthcare facilities must ensure that all their workers are either fully vaccinated or tested on at least a weekly basis. Joe Biden has argued that these policies will strengthen the economy and save lives.
Conservatives in particular balked at the mandate, calling it an overreach of authority, especially as these requirements were not authorized by Congress.
But the lower courts have been divided on the issue, reports the Washington Post. The US court of appeals for the fifth circuit blocked enforcement of the mandate soon after the administration announced the policy for private companies in November. Then the US court of appeals for the sixth circuit dissolved the fifth circuit’s stay, and allowed the rules to go into effect.
The cases involving the mandate for employers with more than 100 workers are National Federation of Independent Business v. Department of Labor and Ohio v Department of Labor, and have been consolidated, as have the the cases involving the mandate for healthcare facilities – Biden v Missouri and Becerra v Louisiana.