An attorney representing a coalition of businesses and retailers asked the U.S. Supreme Court Friday to block the Biden administration's vaccine/testing mandate, saying the government does not have the statutory power to issue such a broad rule on America's employers.
"Our system does not permit agencies to act unlawfully – even in pursuit of desirable ends," attorney Scott Keller told the justices during oral arguments. Keller – who represented the National Federation of Independent Business and the National Retail Federation – said his clients support the vaccine but oppose the mandate.
At issue is an emergency rule by the Occupational Safety and Health Administration (OSHA) that requires workers at large employers either to be vaccinated against COVID-19 or to undergo regular testing and wear a mask. The rule applies to employers with 100 or more employees. The employer is responsible for enforcement.
The case focuses not on the constitutional issue of vaccine mandates but rather on the scope of OSHA's power.
Keller asked the justices for an immediate stay on the rule.
Solicitor General Elizabeth Prelogar said the statute in question gives OSHA authority for the rule. She also argued that public health is at risk.
"Unvaccinated workers stand a one in 14 chance of being hospitalized, a one in 200 chance of dying," Prelogar said.
The court's three liberal justices appeared included to uphold the OSHA rule. The court's six-member conservative bloc asked hard questions of both sides -- although several members of that bloc saved their most challenging questions for Prelogar. Overall, the conservative bloc seemed inclined to oppose the rule.
Chief Justice John Roberts noted that the rule has been referred to as a "workaround" of Congress. He also asked: Why aren't vaccine mandates "the primary responsibility of the states?"
"It seems to me that ... the government is trying to work across the waterfront," Roberts told Prelogar.
Referencing the Congressional statute that gives OSHA its power, Roberts said, "I don't think you can say that that's specifically addressed ... to this problem (COVID-19)."
Justice Neil Gorsuch also expressed skepticism of the OSHA rule.
"Traditionally, states have had the responsibility for overseeing vaccination mandates," Gorsuch said. "... As the Chief Justice points out, it appears that the federal government is going agency by agency as a workaround to its inability to get Congress to act."
Justice Samuel Alito argued that "most OSHA regulations … affect employees when they are on the job, but not when they are not on the job. And this affects employees all the time. If you're vaccinated while you're on the job, you're vaccinated when you're not on the job."
Justice Amy Coney Barrett suggested that the problem with the OSHA rule "is its scope."
Prelogar said the rule does not require workers to be vaccinated.
"There's also a mask and test option here," she said.
Keller asked for an immediate stay against the rule. It is not known when the high court will issue its opinion.
"We need a stay now – before enforcement starts," Keller said. "Our members have to submit publicly their plans on how to comply with this regulatory behemoth on Monday."
Photo courtesy: ©Adam Szuscik/Unsplash
Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.