Conservative justices on the United States supreme court have appeared to cast doubt over whether the Biden administration has legal authority to introduce key measures it has put forward to try to increase Covid-19 vaccination levels.
The court on Friday heard arguments regarding two separate initiatives. It will have to decide whether to block these while full legal arguments continue or allow them to be implemented in the meantime.
One of the initiatives, by the Occupational Safety and Health Administration (OSHA), would require private companies with more than 100 workers to have their staff vaccinated or implement a masking and weekly testing regimen.
A second initiative, put forward by the Centers for Medicare & Medicaid Services, would require vaccinations for more than 17 million healthcare workers at 76,000 facilities that receive federal money linked to these programmes. Overall the measures could affect close to 100 million workers.
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However, a coalition of business and religious groups and Republican-led states argue that the planned requirements for private companies represent a vast overreach on the part of the Biden administration.
Authorisation
They contend that a federal agency, such as the OSHA, cannot take such a sweeping step without specific authorisation by the US Congress and that the policy will lead to worker shortages and major costs for employers.
Those behind the challenge also maintain that the vaccine mandate for healthcare workers would also need to be authorised by Congress given the economic and political significance.
At the hearing, chief justice John Roberts said the pandemic "sounds like the sort of thing that states will be responding to or should be, and that Congress will be responding to or should be, rather than agency by agency the federal government and the executive branch acting alone".
Justices Neil Gorsuch and Brett Kavanaugh both wondered if the OSHA rule could be held as invalid under a legal doctrine that maintained Congress must provide a clear statement on a specific issue in order for a federal agency to be able to issue broad regulations on it.
“It’s not that judges are supposed to decide some question of public health, it’s about regulating the rules of a system to ensure that the appropriate party does. . . . Is this [a question] that has been given to agencies to decide or one Congress has make to decide as a major question under our federal system?” justice Gorsuch asked.
Majority
Conservatives are in the majority on the nine-member court.
US president Joe Biden said the rules would help get people back to work and increase immunisation rates .
“Too many people remain unvaccinated for us to get out of this pandemic for good,” he said in November.
About 62 per cent of the US population is fully vaccinated and about 35 per cent of people have received booster vaccine shots. About 800,000 Americans have died from Covid.
The White House has contended its proposed measures are needed "more than ever" and has expressed confidence in the legal authority for both policies.
