So it's not the easiest decision for some of them. 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? And when they do that, they have a whole series of factors that they look at.Īnd 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. They're looking at whether injunctions should be issued to delay these mandates. And, as you pointed out, this was not really an argument on the merits of the mandates. So I think that that mandate is going to have an easier road when the justices sit down. And I don't know if it was because the justices were exhausted after two hours of arguments on the workplace mandate.īut 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. In fact, the arguments were somewhat muted. 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. And he gave the statistics that we're all seeing now and reading now about the number of infections, the number of hospitalizations.Īnd 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. And he's very concerned about the consequences of delaying the mandates. 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.Īnd 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.īut Justice Breyer, in particular, is sort of the reigning pragmatist on the Roberts court. On the other hand, you have someone like Justice Kagan, who's basically saying, this is really how government works. 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. And he said, well, really, this looks like it's almost an attempt to work around the limits of authority of the executive branch.Īnd 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. 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. 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. Marcia, what's the significance of what we just heard? Justice Elena Kagan questioning Scott Keller, who represented the trade groups opposing the OSHA rule.
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