President Biden’s administration has pursued three different regulatory paths to force the COVID-19 vaccines on as many people as possible. These include OSHA’s test-or-vaccinate order, Medicare’s health-care worker mandate, and a vaccine requirement for federal contractors. On Friday January 7, the U.S. Supreme Court heard challenges to the first two mandates.

First up was OSHA. The National Federation of Independent Business brought this case forward including its members such as the American Trucking Associations, Inc., the National Association of Convenience Stores, and two dozen additional groups representing various players in the U.S. economy. Another case joined the National Federation’s case, with Ohio leading the case, and the joining case was originally brought by 27 states along with numerous business groups, labor unions, churches, and individuals. The major issue for the day included whether the OSHA mandates go beyond the powers of the federal government.

One-Size-Fits-All

Attorney Scott Keller representing the National Federation of Independent Businesses and Benjamin Flowers, Ohio’s Solicitor General, representing the joined case, presented oral arguments for the plaintiffs. OSHA was represented by Solicitor General Elizabeth Prelogar. Keller began by calling the mandate an “economy-wide one-size-fits-all” policy that covers 84 million people in the U.S. He noted that, that very week, the Postal Service had told OSHA that the rule would be too burdensome to comply with. He also said that the rule wrongly deputizes businesses as “de facto public health agencies” and that many people would quit their jobs due to the rule. Ohio’s Solicitor General Flowers challenged OSHA’s power by pointing out that OSHA was following President Biden’s dictates, versus independently seeing a need for a new rule.

Medical Facts Impacting Judicial Analysis

Early in the arguments, two of the more liberal justices made statements about medical facts that have been questioned: Justice Breyer claimed that on January 6 alone there were 750,000 “new cases” but ignored the fact that there is a difference between a positive COVID-19 test and an actual illness.  Justice Sotomayor asserted that 100,000 children were in serious condition and many on ventilators, which has since been clarified by the CDC as being approximately 3,500 children in hospitals.  

OSHA Does Not Have “Free Reign”

Other Justices found concerns with the OSHA rule. Justice Thomas candidly asked if the vaccines even work, and attorney Flowers replied that when it comes to omicron they were, “far less effective.” Chief Justice Roberts took a broad look and found the genesis of the rule to be worth questioning. He said it seemed to him that the federal government was trying to “cover the waterfront” by going from agency to agency, which has been referred to as a “work-around” and noted, “I’m wondering what it is you’re trying to work around?” He added that the notion that Biden’s three mandates were really specific to any given agency, “doesn’t hold much water.” As more and more mandates “pop up” at different agencies, Roberts asked if the court should look at all the federal mandates, taken together, as a general exercise of power and then ask, “Why doesn’t Congress have a say in this” and why isn’t this the primary responsibility of the states? The Chief Justice said it was hard to argue that the OSHA Act from 1970 gives “free reign” to impose the vaccinate-or-test rule.

A Risk of Harm

Justice Alito pointed out two unique features of the OSHA rule: first, the mandate affects workers both on and off the job; second, vaccination carries a risk of harm with it. Last, Alito noted that the testing option may be too onerous if you have to wait in line for an unreasonable amount of time.

Medicare/Medicaid Case

After finishing with OSHA, the court turned to the Medicare/Medicaid health-care worker vaccine mandate. Here, several states challenged the new rule. Justice Thomas asked how rules designed to allow for the “efficient administration” of Medicare would cover, “a vaccine that has—could have significant health consequences?” When asked why Medicare did not require a flu vaccine, the deputy solicitor general representing the federal government called COVID-19 shots, “uniquely effective vaccines,” a fact that is questionable at this stage of the pandemic.

The Big Picture

Looking at the big picture, the court may decide that the OSHA mandate is just too broad to be justified or that the Medicare Medicaid mandate may be justified. The struggle for health freedom has many fronts. Lawsuits are one powerful tool to hold government officials accountable, and we are proud of our fellow Americans and their attorneys for taking these cases to the highest court in our nation!