The Biden administration recently defended its vaccination rule in the Supreme Court, stating that opponents of the regulation are incorrect in calling it a mandate. According to the Washington Free Beacon, lawyers for the Justice Department are contesting arguments from red states, business groups, and religious organizations that claim Congress did not give the executive branch the authority to mandate vaccines. The Biden administration contends that the regulation is not a mandate since it offers companies the option of requiring vaccination or instituting a testing procedure.
From a political standpoint, a Supreme Court win for the administration would be meaningless. President Biden noted during a December 21 press conference that a large majority of Americans do not want more mandates or restrictions as they continue to build fear around the Omicron variant. Biden stated, “I know vaccination requirements are unpopular for many, not even popular for those who are anxious to get them. My administration has put them in place not to control your life, but to save your life and the lives of others.”
Last week, the Department of Justice argued in a court filing that “the standard is not a ‘vaccine mandate.’” The filing reads, “OSHA instead exercised its discretion to allow employers to choose whether to require employees to be vaccinated or to require unvaccinated employees to mask and test. Because employers are best positioned to determine which approach will secure employee cooperation and protection.”
Additionally, the filing claims OSHA’s chartering legislation allows it to regulate harmful “agents” and “new hazards” in the workplace, and that COVID fits that description. They also cited a clause in Biden’s $2 trillion stimulus plan that authorizes OSHA to “carry out COVID-19 related worker protection activities.”
The plaintiffs, and several lower court judges, argue that because employers are required to allow time off for vaccination and rehab, but not for testing, the rule is a mandate. With limited testing, the repercussions of such unequal treatment can be costly, particularly for hourly employees.
The rule affects approximately 80 million people nationwide and the plaintiffs believe that Congress never authorized OSHA to enforce such a large-scale mandate. They claim the agency doesn’t have the power to enact the mandate and that Congress would have been explicit if they were giving the agency such authority, especially because public health policies are largely left to the states.
Biden has not indicated whether boosters would be included in the regulatory definition of “vaccinated” employees, and the slow pace of booster uptake suggests that adjustment may face heavy opposition. Some small business owners have said more restrictions are unwanted in an economy plagued with inflation, personnel shortages, and supply chain issues.
During a special session on January 7, the justices will hear emergency arguments in the case.
