Covid News: White House promises more Covid treatments

Credit…Stefani Reynolds for The New York Times

WASHINGTON — The Supreme Court said Wednesday night it will hold a special hearing next month to assess the legality of two initiatives at the heart of the Biden administration’s efforts to combat the coronavirus in the workplace.

The court said it would act with exceptional speed on both measures, a vaccine or testing mandate for large employers and a vaccination requirement for some healthcare workers, putting the cases to trial on Friday, January 7. The judges had not been scheduled to return to the bench until the following Monday.

Both sets of cases were in what critics call the court’s shadow case, in which the court rules on emergency requests, sometimes on matters of great importance, without full briefing or argument. The court’s decision to hear arguments on the claims may have been a response to growing criticism of the practice.

The more sweeping of the two measures, aimed at businesses with 100 or more employees, would affect more than 84 million workers and is central to the administration’s efforts to deal with the pandemic. The administration estimated that the measure would allow 22 million people to get vaccinated and avoid 250,000 hospitalizations.

The second measure requires healthcare workers in hospitals that receive federal funds to be vaccinated against the virus. This “will save hundreds if not thousands of lives every month,” the administration wrote in an emergency request.

The Supreme Court has repeatedly upheld state vaccine mandates in various contexts against constitutional challenges. But the new cases are different because they primarily present the question of whether Congress authorized the executive branch to institute the requirements.

The answer will mainly depend on the language of the relevant statutes, but there is reason to believe that the court’s six-judge conservative majority will be skeptical of general assertions by the executive branch.

The last time the Supreme Court considered a Biden administration program to fight the pandemic — a moratorium on evictions — the justices shut it down.

“Our system does not allow agencies to act unlawfully even in pursuit of desirable ends,” the court said in August in an unsigned opinion, on dissents by the three liberal justices.

In a statement released late Wednesday, the Biden administration pledged to vigorously defend the initiatives.

“Especially as the United States faces the highly transmissible variant of Omicron, it is essential to protect workers with vaccination requirements and testing protocols that are urgently needed,” said Jen Psaki. , the White House press secretary, adding, “We are confident in the legal authority for both policies.

The vaccination or testing requirement for large employers was issued in November by the Department of Labor’s Occupational Safety and Health Administration, or OSHA.

Employers are allowed to give their workers the option of being tested weekly instead of being vaccinated, although they are not required to pay for the test. The rule makes an exception for employees who do not come into close contact with other people in the course of their work, such as those who work from home or exclusively outside.

Under a 1970 law, OSHA has the power to issue emergency rules for workplace safety, provided it can show that workers are in serious danger and the rule is necessary.

States, businesses and religious groups challenged the measure in appeals courts across the nation, and a unanimous three-judge panel at the United States Court of Appeals for the Fifth Circuit in New Orleans had ruled in favor of some of the challengers, blocking the measure.

Last week, after challenges consolidated at the US Court of Appeals for the Sixth Circuit in Cincinnati, a three-judge split panel reinstated the measure.

“The record establishes that Covid-19 continued to spread, mutate, kill and block the safe return of American workers to their jobs,” Judge Jane B. Stranch wrote for the majority. “To protect workers, OSHA can and should be able to respond to hazards as they evolve.”

Dissenting, Judge Joan L. Larsen wrote that the administration “probably does not have the authority of Congress” to impose the vaccine or test requirement.

“The mandate is aimed directly at protecting the unvaccinated from their own choices,” she wrote. “Vaccines are freely available and unvaccinated people can choose to protect themselves at any time.”

Almost immediately, more than a dozen challengers asked the Supreme Court to block the measure.

The second set of cases the court has agreed to hear concerns a requirement that healthcare workers at hospitals who receive federal money must be vaccinated against the coronavirus.

Federal judges in Missouri and Louisiana blocked the requirement, which provides exemptions for people with medical or religious objections, in rulings that apply in about half of the states.

In the Missouri case, brought by 10 states, Judge Matthew T. Schelp ruled that the administration exceeded its statutory authority in issuing the requirement and failed to follow proper procedures in doing so. A three-judge split panel of the United States Court of Appeals for the Eighth Circuit in St. Louis declined to stay that ruling while an appeal progressed.

In the Louisiana case, brought by 14 states, Judge Terry A. Doughty blocked the requirement for similar reasons. Calling it a “close appeal,” a three-judge Fifth Circuit panel declined to issue a stay while the administration appealed.

The requirement, Solicitor General Elizabeth B. Prelogar told the court, was backed up by “both science and common sense.”

“Requiring that healthcare workers in Medicare and Medicaid participating facilities be vaccinated,” she wrote, “protects the health and safety of patients in those facilities by reducing their risk of contracting the virus that causes Covid. -19”.

The Supreme Court had previously called for responses to emergency requests in both sets of cases by December 30, suggesting it would issue orders soon after without hearing arguments. Her decision to do so followed a somewhat similar decision challenging an abortion law in Texas. Here too, the judges have scheduled oral arguments on an exceptionally accelerated schedule.


An earlier version of this article was in error when the Supreme Court asked for answers to emergency requests in two sets of cases involving vaccination warrants. The court asked for the answers by December 30, not January 30.

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