Live updates: Biden Covid vaccine mandates go to Supreme Court | CNN Politics

SCOTUS hears oral arguments on Biden vaccine and testing mandates

Meg Wagner

Melissa Mahtani

By Tierney Sneed, Adrienne Vogt, Aditi Sangal, Melissa Macaya, Meg Wagner and Melissa Mahtani, CNN

Updated 4:39 PM EST, Fri January 7, 2022

WASHINGTON, D.C. - APRIL 19, 2018: The U.S. Supreme Court Building in Washington, D.C., is the seat of the Supreme Court of the United States and the Judicial Branch of government. (Photo by Robert Alexander/Getty Images)

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Listen Live: Supreme Court hears vaccine mandates cases

• Source: CNN

WASHINGTON, D.C. - APRIL 19, 2018: The U.S. Supreme Court Building in Washington, D.C., is the seat of the Supreme Court of the United States and the Judicial Branch of government. (Photo by Robert Alexander/Getty Images)

Listen Live: Supreme Court hears vaccine mandates cases

What we covered here

The Supreme Court appeared poised Friday to block the Biden administration’s Covid-19 vaccine or testing requirement for large businesses.
The conservative majority seemed skeptical of the Biden position, with Justice Samuel Alito floating an idea of an administrative stay ahead of the Jan. 10 vaccine mandate. Liberal Justice Elena Kagan, meanwhile, called the mandates the policy “most geared” to help stop Covid-19.
In a separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers. Liberal justices grilled Missouri on other types of regulations HHS puts on these workers.

Our live coverage has ended. See how today’s oral arguments unfolded in the posts below.

27 Posts

Key things to know about today's oral arguments — and what could happen next

From CNN's Tierney Sneed and Ariane de Vogue

Eight Supreme Court justices are seen in this courtroom sketch from Friday's proceedings. Justice Sonia Sotomayor was attending remotely.

Eight Supreme Court justices are seen in this courtroom sketch from Friday's proceedings. Justice Sonia Sotomayor was attending remotely.

(Bill Hennessy)

Nearly an hour and a half after it started, the oral arguments in the health care worker mandate case have ended.

Principal Deputy Solicitor General Brian H. Fletcher wrapped the hearing with a brief rebuttal that did not attract any additional questions from the justices.

The Supreme Court spent about three and half hours total on both cases, in what was a marathon session for a court that rarely hosts oral arguments on Friday.

The court appeared ready to reject of one of President Biden’s most aggressive attempts to combat the spread of Covid-19 — a vaccine-or-testing requirement aimed at large businesses.

But in the separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers. The court heard arguments for almost four hours. The three liberal justices on the court expressed clear approval for the government’s rules in both areas.

The cases come as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated.

What comes next was only briefly alluded to during Friday’s session. The cases before the Supreme Court are in an emergency posture, meaning that the court is not being asked to do a full review on the merits on each case.

Rather, the justices are being asked to temporarily put on hold lower court orders while the cases proceed in those lower courts.

For the Occupational Safety and Health Administration’s (OSHA) testing-or-vaccine rules, states are asking the court to put on hold an appeals court order that allows the mandate to be implemented, and in the health care worker case, the administration is asking the justices to lift lower court orders freezing the requirement in several states while the lawsuit plays out.

On these types of emergency requests, the Supreme Court is not required to issue full opinions. It could simply issue one-line orders, that could come at any time.

In contrast, the court typically announces ahead of time when it plans to issue formal opinions — though the court won’t say ahead of time which case it is handing down.

So it’s unclear how quickly we will hear from the court, how much explanation it will give for why it’s doing what it is doing, or even if there will be a heads up that the decision is coming.

A partial ruling could come in record-breaking time given the OSHA mandate for businesses takes effect Monday. The one hint we got was from Justice Samuel Alito, who suggested during the OSHA case that the court might need to issue a brief administrative hold halting the rule, which the administration will otherwise begin implementing next week.

It was not clear how many other justices were on board with that idea, as US Solicitor General Elizabeth Prelogar stressed that the only element of the OSHA rule going into force was its masking requirement for unvaccinated workers. The more burdensome testing requirement for those workers won’t be implemented until February, Prelogar said.

Why the Supreme Court's next steps on the mandates are about more than just vaccines

Analysis from CNN's Tierney

How the Supreme Court goes about its next steps is very important because the reach these cases could have go beyond just the two vaccine mandates in question.

There are challenges to other federal vaccine rules — particularly President Biden’s requirement for certain federal contractors — that are not currently before the Supreme Court but could be implicated by its reasoning in these two cases.

But besides that, the legal issues prompted by these two cases could apply to a whole host of policy matters — from the implementation of the Affordable Care Act to the environment or immigration matters — where the executive branch currently has the discretion to issue regulations not specifically laid out by Congress.

Everyone has different reasons for what to decide: While conservative justices looked poised to block Biden’s requirements Friday, it’s not clear from their comments at today’s hearing that they would share the same reasons to do so.

In the employer mandate case, Justices Neil Gorsuch and Brett Kavanaugh were particularly interested in the sweeping arguments made by the challengers that the executive branch did not have the flexibility to issue the vaccine rules without an explicit directive from Congress.

Justices Clarence Thomas and Amy Coney Barrett asked questions about the procedural mechanism OSHA used to roll out the regulation, touching on narrower arguments the challengers are making about why it should be halted.

The conservative justices showed more openness to allowing the mandate for health care workers to go into effect, however. Here too, they raised different reasons for being skeptical of the arguments the states were bringing. Justice Kavanaugh focused in on how the facilities that were the main targets of the regulations were not before the court challenging the requirement, suggested that that the red states that had brought the lawsuits were not the proper defendants for getting the mandate blocked.

Chief Justice John Roberts, meanwhile, appeared sympathetic to the argument that the Constitution’s Spending Clause gives the federal government authority in the health care worker case that it doesn’t have with the employer mandate. The administration is seeking to implement the health care worker mandate as a condition for their facilities to receive federal health care funding.

Kavanaugh to Missouri official: "Where are the regulated parties complaining about the regulation?"

From CNN's Tierney Sneed

Justice Brett Kavanaugh, a critical conservative vote, focused on what the Biden administration says is a procedural flaw in the case that the states are bringing against the mandate.

As Kavanaugh noted, its not individual health care facilities that are subject to the regulations that are before justices arguing against the mandate, but rather states.

Kavanaugh said that health care provider organizations overwhelmingly support the mandate.

“Where are the regulated parties complaining about the regulation?” Kavanaugh said in an exchange with Jesus A. Osete, Missouri’s deputy attorney general, noting in the OSHA case earlier Friday that private employers that are subject to OSHA’s rules were before the court arguing against the regulation.

“There’s a missing element here,” Kavanaugh said.

2 attorneys challenging vaccine mandates appeared virtually at SCOTUS due to Covid-19 protocols

From CNN's Ariane de Vogue and Tierney Sneed

Two attorneys from states challenging the Biden administration’s vaccine and testing mandates participated in oral arguments at the Supreme Court remotely Friday due to the court’s Covid-19 protocols.

In addition, Justice Sonia Sotomayor took part from her chambers, but she is not ill, the court said.

Ohio’s Solicitor General Benjamin M. Flowers and Louisiana Solicitor General Elizabeth Murrill — participated by telephone. Attorneys planning to attend arguments in person must take a PCR Covid test on the morning before arguments.

Flowers had Covid late last year but has recovered, the Ohio Attorney General’s office said.

The Louisiana Attorney General’s office said only that Murrill was absent due to the court’s protocols.

“In accordance with the COVID protocols of the Court, Solicitor General Liz Murrill will be arguing via phone at today’s hearing,” the office said.

This was the first time an attorney this term will participate remotely, the court’s spokeswoman said. Earlier in the term, Justice Brett Kavanaugh participated remotely from a handful or arguments after testing positive for Covid, and Justice Neil Gorsuch also called in to arguments when he was experiencing a stomach bug.

The court did not give a reason for Sotomayor’s decision, with a court spokeswoman saying only that the liberal justice “is not ill.”

Sotomayor is fully vaccinated and the court announced last week that she had received her booster shot. But she had been the only justice routinely wearing a mask during previous oral arguments, likely due to the fact that she has diabetes.

Friday, for the first time, seven of the justices appeared in the majestic chamber wearing masks, though Gorsuch chose not to.

All of the justices are fully vaccinated, the court has said, and they have all received booster shots.

Ruling on OSHA vaccine and testing mandate could happen in record-breaking time

From CNN's Dan Berman

A partial ruling from the Supreme Court could come in record-breaking time given the Occupational Safety and Health Administration vaccine and testing mandate takes effect Monday.

CNN legal analyst and University of Texas Law School professor Steve Vladeck notes that the court normally issues opinions on cases it hears oral arguments on at 10 a.m. on pre-scheduled days.

But given the issues at play and the fact these are emergency orders, rulings could come today or over the weekend.

Vladeck noted on Twitter the historic nature of that timing:

Liberal justices grill Missouri on other types of regulations HHS puts on health care workers

From CNN's Tierney Sneed

A line of question from liberal justices suggested that the arguments that red states are making for blocking the Biden administration’s vaccine mandate could implicate other types of regulations the Department of Health and Human Services implements for patient safety.

Justice Elena Kagan asked Jesus A. Osete, Missouri’s deputy attorney general, whether the HHS secretary could require handwashing or sanitation of equipment.

Justice Stephen Breyer asked about regulations preventing people with diphtheria from entering facilities. When Osete conceded HHS could require it, Breyer zeroed in: “Why can they say the one and not the other,” he said referring to the vaccine mandate.

Osete said that vaccine mandates have historically been in the states’ province.

Why didn't the Biden administration work faster to roll out vaccine policies? A Justice official explains.

From CNN's Tierney Sneed

The states challenging the mandate have argued that in the several weeks the Department of Health and Human Services took to roll out the policy, it could have gone through a notice and comment period that would allow stakeholders to formally weigh in. But the Biden administration says it’d face a challenge if it didn’t follow the law.

“I guess … an ordinary person might say, ‘well, if it’s really important, why don’t you just work faster?’” Justice Elena Kagan asked during today’s oral arguments.

US Principal Deputy Solicitor General Brian Fletcher said that Health and Human Services Secretary Xavier Becerra did work extremely fast, but also needed to produce a rule that would satisfy all the legal standards.

Virginia's new GOP leaders say the state will join vaccine mandate challenges

From CNN's Terrence Burlij

Virginia Gov.-elect Glenn Youngkin and Attorney General-elect Jason Miyares announced Friday that the commonwealth will join other Republican-led states in challenging the Biden administration’s Covid-19 vaccine mandates.

The announcement comes on the day the Supreme Court is hearing arguments on President Biden’s most aggressive attempts to combat the spread of Covid-19 with vaccine or testing requirements for large businesses and many health care workers.

Youngkin and Miyares said after they are inaugurated on Jan. 15 they “will quickly move to protect Virginians’ freedoms” from the Biden administration’s vaccine mandates.

Justice Sotomayor stresses spending clause in health care mandate

From CNN's Tierney Sneed

Justice Sonia Sotomayor jumped into the oral arguments to note one key distinction between the two cases the court is hearing today.

Unlike the Occupational Safety and Health Administration (OSHA) rules requiring vaccines or testing, the vaccine mandate for health care workers has a different federal authority.

For the health care worker mandate, the administration is requiring vaccines for health care staff as condition for facilities to receive federal health funding — i.e. through their participation in Medicare and Medicaid.

That makes this case a Spending Clause case, Sotomayor said, and she asked if the Spending Clause cases give the federal government more power to define where it wants to spend its money. That difference could be key in terms of how the court eventually rules.

NOW: Arguments start in Biden health care worker mandate case

From CNN's Tierney Sneed

People pour salt on the front plaza of the US Supreme Court on Friday.

People pour salt on the front plaza of the US Supreme Court on Friday.

(Anna Moneymaker/Getty Images)

Arguments in the second mandate case have started, with US Principal Deputy Solicitor General Brian Fletcher speaking first.

In this case, the Biden administration is arguing the justices should reverse court decisions blocking the US Department of Health and Human Services mandate for certain health care workers, so its lawyer is going first.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by Dec. 6 and the mandate allows for some religious and medical exemptions.

Conservative justices seem skeptical after first 2 hours of oral arguments on mandate challenges

From CNN's Tierney Sneed

Solicitor General Elizabeth Prelogar makes her case to the court on Friday.

Solicitor General Elizabeth Prelogar makes her case to the court on Friday.

(Bill Hennessy)

Arguments ended after more than two hours in the challenge of the Biden administration’s vaccine and testing mandate for businesses of over 100 people, and the conservative majority seemed skeptical of the Biden position.

Solicitor General Elizabeth Prelogar wrapped up her arguments with several rounds of questions about the major questions doctrine, with Justices Kavanaugh and Neil Gorsuch signaling their interest in making clear how courts should consider situations where agencies are acting with a policy that doesn’t relate to an explicit instruction from Congress.

Gorsuch zoomed out big picture, by stressing that courts are not being asked to act like public health experts but rather are being asked to decide whether a federal agency vs. Congress and the states gets to design the public health response.

Kavanaugh, meanwhile, brought up comparisons to cases where the court struck down agency actions under the doctrine.

Notably, Justice Amy Coney Barrett, in finishing up the questioning for Prelogar, pivoted away from discussion of the doctrine, and focused her questions on the procedural issues the challengers raised about how OSHA went about implementing the policy.

Justice Alito complains he might be misconstrued by public for asking about vaccines' risk

From CNN's Tierney Sneed

Justice Samuel Alito sounded frustrated that he would soon be misconstrued for asking US Solicitor General Elizabeth Prelogar to confirm that vaccines carry some risk.

He framed up his question by stressing that he didn’t want to be misunderstood, that the US Food and Drug Administration had found the vaccines to be safe and that the FDA found that the benefits greatly outweighed the risks.

But he asked Prelogar if it was true that vaccines carry at least some risk of adverse reaction like other types of medication that are still nonetheless highly beneficial.

As he volleyed with Prelogar, she reiterated that FDA has found vaccines are safe and effective.

“I’m making that point. I’m not making that point. I’m not making that point,” Alito groused.

Justice Alito floats an administrative stay ahead of Jan. 10 mandate implementation date

From CNN's Tierney Sneed

Justice Samuel Alito grilled US Solicitor General Elizabeth Prelogar on the possibility that the court enters a brief stay to give itself a few extra days to consider the case, as currently the administration is planning to being implementing the policy on Jan. 10.

Prelogar said that if the court needed some extra time to consider the case, that was in its prerogative, but she pointed out that the challengers are asking for a much longer hold on enforcement on the policy.

The discussion devolved into a debate involving the other justices over what constitutes a brief delay and the risks to public health in delaying the policy, with Alito knocking the administration for the several weeks the policy has been on hold during the court fight.

Prelogar stressed that the first phase of implementation is just a requirement that unvaccinated workers wear a mask, while the testing requirement for those workers won’t kick in until Feb. 8.

NOW: US solicitor general argues in favor of OSHA vaccine mandate

From CNN's Tierney Sneed

US Solicitor General Elizabeth Prelogar is now arguing in favor of the OSHA mandate.

She noted that the expectation that the OSHA policies would save 6,500 lives and prevent 250,000 hospitalization in the next six months.

She said that exposure to Covid-19 is the biggest threat to worker in OHSA”s history.

“The court should reject the argument that the agency is powerless to address the grave dangers,” she said.

Justice Kavanaugh brings up "major questions doctrine"

From CNN's Tierney Sneed

Justice Brett Kavanaugh, in his first go at asking questions Friday, directed Scott Keller, who is representing the National Federation of Independent Business, towards the so-called “major questions doctrine” —that is the idea Congress needed to be more explicit in giving the authority to the agencies to mandate vaccines than it was.

Kavanaugh asked how courts are supposed to assess whether an agency policy is so economically or politically significant that it requires a clear authorization from Congress.

Keller said courts, in this case, could look at the scope of the vaccine mandate and how many workers it affected, as well as how much money it would cost to implement.

Kavanaugh is often seen as a swing vote for the court, but on the legal issues that the mandate cases raise, he has signaled an interest in reining in the executive branch’s ability to implement expansive policies without clear direction from Congress.

On Friday, he noted that the court has only applied the “major questions doctrine” five or six times in the last 40 years.

He asked Keller, “What should we look at to say this [policy] is the kind … that rises to level” of previous cases where agency policies were struck down under the doctrine.

Nearly half of employed Americans work under vaccine mandates or want one, recent polling shows

From CNN's Jennifer Agiesta

About three in 10 American workers say their employers already require them to be vaccinated against Covid-19, according to recent polling, and nearly two in 10 more say they would like their employer to put in place such a mandate.

A Kaiser Family Foundation poll conducted in November found that 29% of employed Americans said their employer required them to get a Covid-19 vaccine, 69% said their employer did not require that. Another 18% of workers said they wanted their employer to require them, meaning about half overall, 47%, either work under a mandate or would prefer to have one in place.

Those who work for the types of larger companies which would be affected by the Biden administration’s proposed mandate were more likely to say their employer already required vaccines, with 36% among those who work for companies with 100 employees or more saying so.

Another 17% work at such a company without a current vaccine requirement and said they would prefer one, while 41% who work for companies of that size said their company did not put in place a vaccine mandate and they do not want one.

Overall, a majority of all Americans favor requiring vaccination in order to go to work. In the KFF poll from November, 52% said they supported a federal government requirement for vaccines or weekly testing among larger employees, down slightly from 57% who backed that in October.

A CNN poll conducted in early December, shortly after the emergence of the omicron variant, found higher support for a government mandate for larger business, 60% said they supported one that required vaccination or weekly testing for employees of businesses with 100 employees or more.

A CBS News poll also conducted in early December, found 53% in favor of requiring proof of vaccination to go to a workplace, without specifying whether that requirement came from the government or from employers.

Here's a look at the latest US vaccination figures as SCOTUS hears oral arguments on Biden's mandates

From CNN's Deidre McPhillips

A person receives a Covid-19 vaccine in Los Angeles in November.

A person receives a Covid-19 vaccine in Los Angeles in November.

(Frederic J. Brown/AFP/Getty Images)

The Supreme Court is taking up challenges to President Biden’s vaccine and testing requirements — as the number of infections soar and 40 million adults in the US are still declining to get vaccinated.

Justices have made mention of the surge in coronavirus cases as a result of the Omicron variant when hearing arguments from both sides today.

Here’s the latest data on vaccination efforts in the US, published Thursday by the US Centers for Disease Control and Prevention.

Fully vaccinated: 62.4% of the total US population (all ages), about 207 million people.
In four states, less than half of the population is fully vaccinated: Alabama, Idaho, Mississippi and Wyoming.
In five states, at least three-quarters of the population is fully vaccinated: Connecticut, Maine, Massachusetts, Rhode Island and Vermont.
Not vaccinated: At least 21.3% of the eligible population (ages 5 and older) has not received any dose of Covid-19 vaccine, at least 66 million people.
Current pace of vaccinations (seven-day average): 1,072,127 doses are being administered each day.
Most doses being administered – about 597,000 – are booster doses.
Only about 304,000 people are initiating vaccination each day.
About 73 million people have received a booster dose.
About 23% of the total US population is now fully vaccinated and boosted.
The pace of booster dose administration ticked up amid the Omicron variant’s early initial spread but has since trailed off.

With regards to hospitalizations, there are 126,410 people currently hospitalized with Covid-19, according to the Department of Health and Human Services.

Hospitalizations are on the rise, and about 89% of the way to last year’s peak. There have been only 19 days since the beginning of the pandemic that there have been more than 125,000 people hospitalized with Covid-19 at one time.

The US is now averaging 602,547 new Covid-19 cases and 1,256 new deaths each day, according to Johns Hopkins University (JHU).

Nearly 834,000 people in the US have died of Covid-19 since the pandemic began, about one in every 400 Americans, according to JHU data. About one in every six people has tested positive.

Note: CDC data on Covid-19 vaccinations are estimates. The agency notes that data on people who are fully vaccinated and those with a booster dose may be underestimated, while data on people with at least one dose may be overestimated.

Justice Sotomayor presses attorney for businesses on rules to protect workers

From CNN's Tierney Sneed

Justice Sonia Sotomayor had some of the sharpest questions for Scott Keller, who is representing the National Federation of Independent Business.

She noted that some states are banning private employers from implementing their own vaccine or mask mandates and said that “Congress has decided to give OSHA the power to regulate workplace safety.”

Why shouldn’t the federal government have a national rule to protect workers, Sotomayor asked.

Later in her questioning, Keller tried to distinguish the vaccine-or-mask rules from OSHA’s ability to regulate that workplaces require masks when machinery is emitting dangerous sparks.”

“Why is a human being not like a machine if it’s spewing bloodborne viruses” when it comes to OSHA’s authority, Sotomayor pushed back.

Chief Justice Roberts hints at possible pro-mandate position

From CNN's Tierney Sneed

Chief Justice John Roberts pivoted off of Justice Elena Kagan’s points about vaccines and testing being the best approach for addressing the pandemic in the workplace.

“Why wouldn’t OSHA have the authority to do the best approach possible to address what — I guess you would agree — is a special workplace problem?” Roberts asked during the Supreme Court’s oral arguments.

But in a worrying sign for the Biden administration, Roberts then expressed some skepticism of the administration’s broader approach in rolling vaccine mandates across several agencies.

Roberts referenced the arguments planned later Friday for a separate health care worker mandate being implemented by the US Department of Health and Human Services: “It seems to me that the government is trying to work across the waterfront and is just going agency by agency,” Roberts told US Solicitor General Elizabeth Prelogar.

“I understand the idea that agencies are more expert than Congress. I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before,” Roberts said.

More context: Roberts is a key swing vote the Biden administration will likely need to keep the mandate in force. But the administration will also need to convince a second conservative justice to join the three liberal justices likely to vote in favor of the mandate as well.

Kagan says vaccines are obvious solution, calling mandates the policy "most geared" to help stop Covid

From CNN's Tierney Sneed

Justice Elena Kagan interrupted Scott Keller, who is representing the National Federation of Independent Business, to ask why vaccines shouldn’t be mandated.

“Why isn’t this necessary to evade a grave risk?” Kagan asked, referencing the language in the relevant OSHA statute.

Kagan noted that people are getting sick and dying every day because of the pandemic.

“Whatever necessary means, whatever grave means: why isn’t this necessary and grave?” she added.

The justice called the current situation “extraordinary circumstance, a circumstance this country has never faced before.”

Kagan later stressed that the challengers are asking courts to substitute their judgments for that of agency experts.

She argued that agencies — through the President — do face political accountability, while courts are unelected and don’t have any epidemiological expertise.

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