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(Reuters) — Conservative U.S. Supreme Court justices on Friday questioned the legality of President Joe Biden's pandemic-related vaccine-or-testing mandate for large businesses but appeared more receptive to his administration's vaccine requirement for health care facilities at a time of surging COVID-19 cases.
The nine justices heard more than 3-1/2 hours of arguments in two cases that test presidential powers to combat a public health crisis that has left more than 830,000 Americans dead.
Republican state officials and business groups asked the justices to block the administration's rule affecting businesses with at least 100 workers — a policy affecting more than 80 million employees. States challenged the administration's vaccine mandate affecting an estimated 10.3 million workers at about 76,000 health care facilities.
The court's 6-3 conservative majority in the past has shown skepticism toward sweeping actions by federal agencies.
The White House has said the two temporary mandates will save lives and strengthen the U.S. economy by increasing the number of vaccinated Americans by the millions.
The challengers argued that the federal government exceeded its authority by imposing requirements not specifically authorized by Congress and failed to follow the proper administrative processes for issuing emergency regulations.
Friday's first argument focused on a U.S. Occupational Safety and Health Administration requirement that workers at businesses with 100 or more employees be vaccinated or tested weekly. The administration is scheduled to begin enforcing the policy on Monday.
Conservative Chief Justice John Roberts wondered whether Congress or the states should have a say. Questioning U.S. Solicitor General Elizabeth Prelogar, who argued for the administration, Justice Roberts appeared skeptical that the 1970 law that established OSHA gave that agency the power it needs.
“That was 50 years ago that you're saying Congress acted. I don’t think it had COVID in mind. That was almost closer to the Spanish flu than it is to today's problem,” Justice Roberts said, referring to the pandemic that occurred a century ago.
Some justices raised the possibility of the court issuing a temporary stay blocking the rule while the court decides how to proceed. Some also wondered why the policy would be impermissible in the face of a historic pandemic.
“This is a pandemic in which nearly a million people have died,” said liberal Justice Elena Kagan. “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. ... And this is the policy that is most geared to stopping all this.”
“I would find it would be unbelievable to be in the public interest to stop these vaccinations,” liberal Justice Stephen Breyer said.
The state of Ohio and the National Federation of Independent Business took the lead in seeking to block that mandate.
Justice Roberts appeared skeptical as to whether the OSHA mandate was specific to the workplace, noting that the administration has sought to enact various mandates. As such, Justice Roberts wondered if it is an issue that the court should address as a broad exercise of executive power.
“Why doesn't Congress have a say in this ... and why isn't this the primary responsibility of the states?” Justice Roberts asked.
Conservative Justices Neil Gorsuch and Brett Kavanaugh both wondered if the OSHA rule could be held as invalid under a legal doctrine that says Congress must provide a clear statement on a specific issue in order for a federal agency to be able to issue broad regulations on it.
Conservative Justice Samuel Alito, while saying he is not anti-vaccinations, raised the question of potential dangers to some people of getting the shots and asked whether OSHA has ever imposed a safety measure that imposes a “risk.”
Under the second policy being reviewed by the Supreme Court, vaccination is required at health care facilities that participate in the Medicare and Medicaid government health insurance programs for elderly, disabled and low-income Americans.
The Centers for Medicare & Medicaid Services, the federal agency responsible for administering the two programs, issued the rule. The states of Missouri and Louisiana took the lead arguing against it.
Justice Gorsuch questioned whether CMS has the authority to issue a vaccine regulation because such a policy affects an employer's staffing decisions, which Congress has said the agency could not do as part of its Medicaid and Medicare funding requirements.
Justice Gorsuch said that “you cannot use the money as a weapon to control these things.”
Conservative Justice Amy Coney Barrett questioned whether the administration has the power to require all kinds of health care facilities to be covered by the rule, saying the agency's authority varies depending on specific language in various different laws.
“What if I think some of the provisions might support you but others don't?” Justice Barrett asked, adding that the administration's strongest case is to require vaccines in long-term-care facilities.
Justice Kagan questioned the states' argument that the government has a limited role in protecting health and safety for patients.
All the government is doing, Justice Kagan said, is "to say to providers, you know what, basically, the one thing you can’t do is to kill your patients, so you have to get vaccinated."
Justice Kavanaugh noted that private health care providers have not challenged the mandate that states are seeking to end, adding: “The people who are regulated are not here complaining about the regulation. It's a very unusual situation.”
Justice Sonia Sotomayor participated in the arguments from her chambers, and two arguing attorneys, the solicitors general of Ohio and Louisiana, participated remotely by telephone, a court spokeswoman said. Ohio Solicitor General Benjamin Flowers tested positive for COVID-19, his office said, and Louisiana Solicitor General Liz Murrill argued remotely “in accordance with COVID protocols,” her office said.
The United States and countries around the world are facing an upswing in COVID-19 cases driven by the omicron coronavirus variant. The justices spent most of the pandemic working remotely but returned to in-person arguments in October. All nine are fully vaccinated, the court said. The court remains closed to the public.
The Biden administration is asking the justices to lift orders by judges in Missouri and Louisiana blocking the health care worker mandate in half the 50 states.
The Cincinnati-based 6th U.S. Circuit Court of Appeals on Dec. 17 lifted an injunction issued by another court that had blocked the OSHA rule regarding large businesses, prompting challengers to ask the Supreme Court to intervene.
Decisions in both cases are expected quickly.