Vaccine mandate challenge reveals deep divides in the Supreme Court

The U.S. Supreme Court on Friday heard lengthy arguments challenging the Biden administration's vaccine and testing requirements in the workplace. The rules at stake are at the heart of the government's pandemic response and could have significant implications for roughly 100 million workers. As with all issues surrounding the pandemic and vaccines, they spark strong opinions. John Yang reports.

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  • Judy Woodruff:

    The U.S. Supreme Court today heard lengthy arguments challenging the Biden administration's vaccine and testing requirements in the workplace. The high-stakes cases could have significant implications for some 100 million workers.

    John Yang has the story.

  • John Yang:

    Judy, the two rules being challenged are at the heart of the Biden administration's pandemic response.

    One would require big employers to make sure that their workers are either vaccinated or tested at least once a week. The other requires vaccinations for health care workers at facilities that treat Medicare and Medicaid patients.

    As with all things surrounding the pandemic and vaccines these days, these rules are sparking strong opinions.

    We asked viewers for some of theirs.

  • Robert Fritz, Museum Educator:

    My name is Robert. I'm 27 years old, and I work in public programming at a local museum here in Miami, Florida.

    As of October 1 of last year, my workplace required that all staff be fully vaccinated.

  • Kayla Alexander, Nurse Extern:

    My name is Kayla Alexander. I'm 26 years old. Currently, I'm a nurse extern at a hospital.

  • Dr. Tommy Redwood, E.R. Physician:

    I'm Tommy Redwood. And I'm an M.D., board-certified emergency physician, and have been for the past 30 years.

    When the mandates came out, it was get the vaccine or face termination of privileges. I had certain concerns about the safety of the vaccines and the efficacy of the vaccines. And, for this reason, I elected not to get the vaccine. I was terminated.

  • Rebekah Lawson, Washington:

    My name is Rebekah Lawson. I am 35 years old. I am from Spokane County, Washington.

    In Washington state, Governor Inslee did put out a mandate for a vaccine for particular sectors of employment. At the time that the mandate was put into effect, I was pregnant, and when I got my first shot to keep my employment, it was a situation where I had wanted to get it on my own terms, but, to keep my employment, I needed to get it on the timeline that was required by the state.

  • Kayla Alexander:

    My hospital job mandated the implementation of having the vaccine.

    We have lost more housekeeping staff, if anything, with declining the vaccine. So, it's more so a time issue, in terms of the burden being left on people who are not in traditionally housekeeping roles, such as myself or a nurse.

  • Robert Fritz:

    I fully support the mandate from OSHA, and I hope it passes. My hope is that they can help level out some of the discrepancies between the federal response and the state responses to the pandemic.

    As someone who has loved ones and family in places like California and New Hampshire, living here in Florida, I think it's a shame that the response has been so uneven.

  • Rebekah Lawson:

    I think my feelings on a federal mandate for vaccination is that it is the responsibility of a person, their family, and their community to make the best decisions for them. It is a deeply personal decision, and fear is a very powerful motivator.

  • Dr. Tommy Redwood:

    Being terminated after devoting my entire professional career to this community, coupled with the fact that just, one year earlier, we were being touted as heroes — at the end of the evening, you would hear the car horns honking and people celebrating the things that we were doing.

    And to go from that to saying, OK, we appreciate your service, you were a hero, but now if you don't do what we tell you to do, we're going to terminate you, we don't need you anymore, that felt like a form of betrayal from the system.

  • Robert Fritz:

    I do think that, since people have made it very clear that it is their right to have the vaccine, they need to understand, clearly, it is a company's right to not employ you if they want you to be vaccinated.

  • John Yang:

    Technically, today's arguments are not about whether the mandates are illegal. They were about whether the mandates should take effect while they're being challenged in lower courts.

    Marcia Coyle is chief Washington correspondent for "The National Law Journal."

    Marcia, divergent views from our viewers, and we heard some divergent views from the justices today during their oral arguments.

    So, let's start by playing some of that. The first step is Chief Justice John Roberts questioning Elizabeth Prelogar, who is the Biden administration's attorney.

    John Roberts, Chief Justice of the U.S. Supreme Court: It seems to me that it's — the government is trying to work across the waterfront. And it's just going agency by agency.

  • Elizabeth Prelogar, U.S. Solicitor General:

    What we're trying to do here and what OSHA did was rely on its express statutory authority to provide — to provide protection to America's work force from grave dangers like this one.

  • John Roberts:

    It seems to me that the more and more mandates that pop up in different agencies, it's fair — I wonder if it's not fair for us to look at the court as a general exercise of power by the federal government, and then ask the questions of, well, why doesn't Congress have a say in this? And why don't — why doesn't this be the primary responsibility of the states?

  • Elena Kagan, U.S. Supreme Court Associate Justice:

    All kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.

    So who decides? Should it be the agency full of expert policy-makers, and completely politically accountable through the president? Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise.

    Why in the world would courts decide this question?

  • Scott Keller, Attorney:

    Congress and states and governors wielding emergency power are the ones that have the power — and we acknowledge that — over vaccines.

    The idea that OSHA would be the agency in the federal government that's not even under the Department of Health and Human Services, that does not have expertise over communicable diseases, like the FDA or CDC, maybe, that would just be a very odd place for Congress to lodge such a sweeping power over the American people.

  • John Yang:

    Justice Elena Kagan questioning Scott Keller, who represented the trade groups opposing the OSHA rule.

    Marcia, what's the significance of what we just heard?

    Marcia Coyle, "The National Law Journal": Well, John, I think the bottom line is there is a very deep divide on the court on how it's looking at the vaccine mandates and the authority of the federal agencies that are trying to implement them, whether they have that authority.

    The chief justice was increasingly skeptical as the arguments went on, and was wondering if — he pointed out several times that, OK, there's a workplace mandate, there's the Medicaid/Medicare mandate, there's the federal contractor mandate. And he said, well, really, this looks like it's almost an attempt to work around the limits of authority of the executive branch.

    And that concern about how broad some of the agencies are using their authority was echoed by other justices, such as Justice Neil Gorsuch and Justice Amy Coney Barrett. They wondered, where are the limits on agency authority? That is something that conservatives in particular on the court have been concerned about for many years.

    On the other hand, you have someone like Justice Kagan, who's basically saying, this is really how government works. Congress delegates a certain amount of authority to federal agencies in order to make decisions, rules, regulations, based on their special expertise, expertise that a Congress cannot have every time an issue comes up that has to be addressed by the national government.

    And so she is saying, who would you rather make this decision, the courts or the agency with the expertise? And their — her view also was echoed in a different way by Justices Breyer and Sotomayor.

    But Justice Breyer, in particular, is sort of the reigning pragmatist on the Roberts court. And he's very concerned about the consequences of delaying the mandates. And he gave the statistics that we're all seeing now and reading now about the number of infections, the number of hospitalizations.

    And he worried that each day of delay would cause more deaths, more burdens on the hospitals trying to deal with the growing number of infections. So there's just really a deep divide. It's not to say that the justices on the left are not also concerned that the agencies exercise the proper authority here, but they're seeing it through a different lens.

  • John Yang:

    Was there the same divide, the same skepticism from the conservative justices when it came to the health care worker vaccine mandate?

  • Marcia Coyle:

    Not so much, John.

    In fact, the arguments were somewhat muted. And I don't know if it was because the justices were exhausted after two hours of arguments on the workplace mandate.

    But I think they saw that — and the chief justice did point this out — that there seemed to be a much tighter fit between the vaccine mandate for health care workers and the statutes that govern the Centers for Medicare and Medicaid Services and the Department of Health and Human Services, which are charged with being responsible for the health and safety of the patients in those facilities.

    So I think that that mandate is going to have an easier road when the justices sit down. And, as you pointed out, this was not really an argument on the merits of the mandates. They're looking at whether injunctions should be issued to delay these mandates. And when they do that, they have a whole series of factors that they look at.

    And one of the factors is, of course, the likelihood of success on the merits of a challenge to the mandate, and also the weighing of the public interest. What are the equities here on each side, and what is more important, public health or, as some of the states have demonstrated, there could be some serious consequences from the mandates in terms of job losses?

    So it's not the easiest decision for some of them. In fact, Justice Alito pointed out at one point that this raises complex issues, and maybe, even though the states want an immediate halt to these mandates, maybe the court should have an — what they call an administrative stay, to give them a couple of days, at least, to think it through.

    I'm not sure what court is going to do at this point, but I have a feeling that they will act fairly quickly.

  • John Yang:

    Marcia Coyle of "The National Law Journal," thank you very much.

  • Marcia Coyle:

    My pleasure John.

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