Supreme Court Justices grill on question of emergency order for vaccine mandates
Mandate would cause massive economic shift as 1-3% of employees nationwide would quit, says Attorney Scott Keller.
Photo: Mike Kline/Getty Images
Supreme Court Justices grilled Scott Keller, who gave arguments this morning against the federal vaccine-or-testing mandate for large employers.
Keller, representing the National Federation of Independent Business, argued that the Occupational Safety and Health Administration Standard is a one-size fits all mandate that represents an overreach of power.
OSHA has never before mandated vaccines or widespread testing and a single federal agency cannot commandeer this action, Keller said.
The U.S. Postal Service has called it burdensome, he said, with employees threatening to quit. An estimated 1-3% of employees nationwide would quit over the mandate to get vaccinated, he said. The OSHA mandate pertains to about 84 million people, two-thirds of the workforce.
Also, testing services have been hard to find, Keller said, estimating that only 28% have been able to find weekly testing.
The mandate would cause a massive economic shift in the country, Keller said.
"It will ripple through the national economy," he said.
Keller wants the court to stay OSHA's Emergency Temporary Standard before Monday.
However, most of the justices appeared unswayed by his argument that the OSHA mandate did not rise to the level of an emergency power being used when it is necessary or appropriate.
Justice Clarence Thomas and others asked, when is the emergency used and who determines that?
Justice Elena Kagan asked, "Why isn't this necessary to grave risk? Nearly a million people have died. This is the policy most geared to stopping all of this. Why isn't this necessary and grave?"
Chief Justice John Roberts said there was some pressing urgency to addressing the problem.
Justice Stephen Breyer said hospitals are full and it would be hard to believe that it would be in the public interest to stop this vaccination rule.
WHY THIS MATTERS
The Supreme Court is fast-tracking the two vaccine mandate cases today.
The justices are not determining whether the mandates are legal – that is expected to come at a later date – but whether the mandates will stand as legal challenges make their way through the appeals process.
One case is over the mandate for workers at companies having 100 or more employees to either get vaccinated or to get tested. The other mandates vaccinations for healthcare workers in facilities that receive Medicaid and Medicare funding. Both go into effect this month.
THE LARGER TREND
The Omicron variant is causing COVID-19 cases to surge nationwide. Most of those hospitalized are the unvaccinated.
The Department of Justice has asked the Supreme Court to uphold the vaccine mandate for healthcare workers by requesting a stay of a federal court order against it. The AMA has also urged the Supreme Court uphold the mandates.
About half the states in the United States, 24, have filed lawsuits against the federal vaccine mandates. The challenges have been consolidated in the U.S. Court of Appeals for the 6th Circuit.
Twitter: @SusanJMorse
Email the writer: susan.morse@himssmedia.com
