The Supreme Court heard arguments in two cases on Friday that could seriously limit the federal government’s ability to set public health policy during the pandemic. The question is whether the existing health and safety authority given to federal agencies by Congress is broad enough to cover the pandemic, or whether Congress should step in and explicitly authorize agency actions.
The arguments come as the United States sees an unprecedented increase in COVID-19 cases. Indeed, two of the state lawyers opposing these new public health measures were caught in this wave and had to participate in the hearings remotely.
Pros and cons
Two separate cases are heard today, both relating to executive action taken by the Biden administration. The first case concerns a rule, issued by the Department of Health and Human Services (HHS), covering all healthcare workers in facilities that accept Medicare and Medicaid. The rule requires these workers to be vaccinated unless they are exempted for medical or religious reasons. The second case concerns a vaccine or test warrant issued by the Occupational Safety and Health Administration (OSHA); the mandate would apply to any business with 100 or more employees.
The HHS rule is currently on hold due to inferior court rulings. But the OSHA rule could be applied as early as Monday, since the highest court with jurisdiction to rule on the measure has lifted any suspension imposed by lower courts.
The government maintains that Congress gave executive agencies the right to issue these rules. In the case of the HHS, Congress authorized the agency to establish minimum standards that medical institutions must meet in order to protect the health and safety of patients. OSHA has also had the ability to issue emergency rules to prevent employees from being exposed to hazards in the workplace.
The two new rules, however, encountered opposition from a number of US states and business groups. A complicated set of partially overlapping lawsuits are currently pending in the lower courts; the question is whether the new rules should be suspended while these cases are decided. To do this, opponents of the new rules must convince the Supreme Court that they are likely to win when the cases are finally decided.
Those who oppose the new public health measures argue that the court’s “major issues doctrine” applies, which means administrative agencies cannot adopt significant policy changes on the basis of vague language. in existing laws; they need specific advice from Congress to do this. Opponents argue that the regulatory authority Congress gave to the agencies was for applications other than a virus, so explicit new authorization is required.
Separately, opponents also argue that enforcing either rule would lead to the departure of many employees, disrupting businesses and healthcare. Since the exact opposite happened when private employers and hospital systems issued their own warrants, this argument seems unlikely to carry much weight.
OSHA’s rules for private businesses were heard longer and seemed to attract more skeptical scrutiny. While this may be the product of their different status – OSHA rules are currently allowed to go into effect – it was also clear that conservative judges were inclined to declare the issue of general employment vaccination warrants a ” major issue “which would require further action by Congress.
In contrast, there was much less skepticism about the HHS ‘legal grounds for setting medical safety standards. Even one of the state attorneys general opposing the new rule admitted that the government has the ability to set standards to prevent other diseases, and the question was simply whether vaccines fell within the jurisdiction. established. Meanwhile, Justice Kavanaugh pointed out that it is state officials, rather than healthcare facilities that would be regulated, who oppose the policy.
Once the arguments are completed, the only question remaining is how quickly the court will rule. While the hearings have been held on an accelerated schedule, OSHA is currently poised to enforce its rule as early as next week, leaving a short window for the Supreme Court to intervene before businesses across the country need to act. .
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