Joining Keller in challenging the business mandate was Ohio Solicitor General Benjamin M. Flowers also criticized OSHA’s one-size-fits-all approach.
The agency’s “sweeping” rule treats employers the same, he stressed, “regardless of the other steps they’ve taken to protect employees, regardless of the nature of their workplaces, regardless of their employees’ risk factors, and regardless of local conditions that state and local officials are far better positioned to understand and accommodate.”
Skepticism from conservative justices
During the vaccine-or-test case, multiple justices cited the Major Questions Doctrine. The court clarified this judicial concept in 2014, in Utility Air Regulatory Group v. EPA, when it stated that it assumes “Congress to speak clearly if it wishes to assign an agency a decision of vast ‘economic and political significance.’”
Under the standard version of the doctrine, “statutory ambiguity on such questions requires a court to reject the agency’s assertion of administrative power and leave the policy question to Congress to resolve in subsequent legislation,” according to an analysis published by the C. Boyden Gray Center for the Study of the Administration State at George Mason University’s Antonin Scalia Law School.
“In the non-standard version of the doctrine,” the analysis states, “the statutory ambiguity on major questions empowers courts to resolve the policy dispute by upholding or denying the agency power as the court thinks best."
“If there is an ambiguity, why isn't this a major question that therefore belongs to the people's representatives of the states and in the halls of Congress?" Gorsuch asked Prelogar. "Traditionally states have had the responsibility for overseeing vaccination mandates."
Chief Justice John G. Roberts Jr., another conservative, noted that Congress has had more than 50 years since the passage of the 1970 occupational and safety act to specify that OSHA has the authority to mandate worker vaccinations, yet it never did so.
“This is something that the federal government has never done before, right? Mandated vaccine coverage?” Roberts asked, before also pointing out that “the police power to take such action is more commonly exercised by the states.”
Prelogar argued Congress implicitly provided OSHA to take such a measure if necessary in the language of the original statute. She cited the unprecedented nature of the COVID-19 pandemic in answer to why the agency has not mandated vaccinations before.
The court has already allowed state vaccination mandates for health care workers in Maine and New York to take effect, despite the absence of religious exemptions.
(Story continues below)
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Impassioned comments from liberal justices
While conservative justices focused on the Major Questions Doctrine, liberal justices spoke impassionately at several points on the urgent need for government action to halt the spread of the virus.
“Why isn’t this necessary to abate a grave risk?” Justice Elena Kagan asked Keller, referring to wording in the OSHA statute. “This is a pandemic in which nearly a million people have died. It is by far the greatest public health danger that this country has faced in the last century. More and more people are dying every day. More and more people are getting sick every day. I don’t mean to be dramatic here, I’m just sort of stating facts. And this is the policy that is most geared to stopping all this.”
Liberal justices Stephen G. Breyer and Sonia Sotomayor also challenged Keller.
“Can you ask us, is that what you’re doing now, to say it’s in the public interest in this situation, to stop this vaccination rule with nearly million people — let me not exaggerate, nearly three-quarters of a million people — new cases every day? I mean, to me, I would find that unbelievable.”
“This is not a vaccine mandate,” Sotomayor said, citing the option to test regularly, pushing back against Keller’s claim that large numbers of workers will quit rather than get vaccinated. “There are costs and deaths and other things countervailing to the fact that there might be 1-3% of workers who leave.”