A number of President Joe Biden’s COVID-19 vaccine mandates have been so ferociously contested that they quickly ended up in the hands of the U.S. Supreme Court. On Friday, the high court heard arguments on two of his mandates, including the one that affects businesses with over 100 employees.
As The Daily Wire noted, conservative Justice Amy Coney Barrett asked attorneys defending Biden’s Occupational Safety and Health Administration-enforced (OSHA) mandate how long the COVID-19 emergency is expected to last, which could play a key role in deciding how much power the agency has in enforcing such a mandate.
The questions asked by Barrett seemed to indicate where she might land on a decision, as she’s clearly concerned with the amount of power necessary to enact such a mandate without congressional comment.
Barrett held nothing back when questioning the attorneys representing the defense of Biden’s workforce mandate.
“When does the emergency end? I mean, a lot of this argument has been about Congress’s failure to act. Two years from now, do we have any reason to think that COVID will be gone or that new variants might not be emerging?” Barrett asked.
She added: “And when, when must OSHA actually resort to its regular authority and go through notice and comment and not simply be kind of doing it in this quick way, which doesn’t afford people, the voice in the process that there are otherwise entitled to?”
Elizabeth Prelogar, the U.S. Solicitor General arguing on behalf of the Biden administration, attempted to answer the question by defending the authority OSHA apparently has in this unique scenario, but Barrett remained extremely skeptical.
“So it could be an emergency two more years from now?” Barrett fired back. “Two years from now, OSHA might two years from now adopt something that’s different from this vaccine or mask and test mandate. I’m just talking about the limits more generally on OSHA’s power under the ETS provision.”
The plaintiffs’ argument
Scott Keller, a former Texas solicitor general spearheading the arguments on behalf of those who are against the workforce mandate, countered Prelogar’s arguments.
“It’s unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed yet here OSHA has never, before done mandated vaccines or widespread testing, much less over all industries or on an emergency basis,” Keller said.
Keller added: “It is undisputable that the public has a strong interest in combating the spread of the COVID-19 Delta variant but our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”
It’s impossible to tell which way the high court will go on the workforce mandate, but a number of court watchers believe they’re more apt to shoot that particular mandate down, to some degree, while keeping others, such as the mandate for federal workers, intact. Only time will tell, but a decision is expected within days.