Supreme Court hears oral arguments on Biden vaccine mandates: LIVE UPDATES

From Fox News' William Mears: Arguments have wrapped after a total of about three hours, 40 minutes for both cases. 

There is no indication from the bench how quickly orders from the court will be issued, or when or whether fuller written opinions explaining the court’s reasoning will be issued.

Given the fact some of these mandates go into effect beginning next week, or in coming weeks, the justices could issue some kind of order as soon as today or this weekend. 

The liberal justices on the court have continued to defend the federal government's ability to impose the vaccine mandates on workers, but this time in the context of healthcare.

Justice Kagan said labor disruptions must be weighed against people not showing up at hospitals because they are afraid of getting COVID-19.

"And so they're not coming for their mammograms and they're not coming for their colonoscopy and so forth," she said. "So [the secretary] has to balance all those health benefits against what you say are these labor disruptions...Should It be that we decide, you know, as against what the secretary has decided in performing his important function of evaluating these potential disruptions and and weighing those disruptions against the health benefits that he sees in that rule?"

Justice Gorsuch asked a series of questions to Fletcher about the impact of the vaccine mandates and how it can be viewed potentially as controlling the employment of healthcare workers -- which is not allowed by the law.

"This regulation affects, we're told, 10 million health care workers and will cost over a billion dollars for employers to comply with," he said. "So what's your reaction to that why isn't this a regulation that effectively controls the employment and tenure of health care workers at hospitals? An issue Congress said the agency didn't have the authority that that should be left to the states to regulate."

Fletcher said the government reads the relevant statute as saying that the secretary cannot dictate particular hiring decisions: "That's what control and supervision means."

The court is now hearing arguments on CMS rules for vaccine mandates for healthcare facilities receiving Medicaid/Medicare funding.

Some Court watchers think the administration may have a better case for being able to enforce the rules in this case, since receiving funding is already contingent on a variety of other federal regulations imposed on the facilities and private home health care workers. 

Brian Fletcher, Principal Deputy Solicitor General is now arguing for the Biden administration.

The oral arguments have now ended on the OSHA vaccine mandates.

Stay tuned to Fox News and FoxNews.com for the latest news on the Supreme Court and the vaccinate mandate.

Justice Barrett asks the government how long OSHA intends to use the powers it has to bypass the notice-and-comment period of regulation, given that COVID-19 is now on its way to becoming endemic, and may last for years if not longer.

"When must OSHA resort to its normal authority and notice and comment?" she asks.

The government lawyer says that is not clear but assures the court that this is "not a way to bypass notice and comment permanently."

Kavanaugh, on the arguments that Congress has not authorized OSHA to make these mandates, notes that Congress has made explicit references to vaccines on a number of occasions in statute (but not in this instance), and he notes that President Bush made reference to a potential threat of this nature in 2005.

"Yet there has not been a vaccine statute passed by Congress to deal with this kind of thing," he said.

The government lawyer says she believes Congress would have anticipated this as vaccines are often the single most effective way to target a virus and to stop its spread.

Alito asks Prelogar about the side-effects of vaccines in some instances, while strongly stressing that the vaccines are overwhelmingly safe.

Prelogar says that there are some adverse consequences, but minimal compared to COVID-19.

Alito asks if OSHA has ever imposed any other regulation that would impose potential adverse health effects on workers. Prelogar says it has not, but there is no reason to think the regulation is precluded on that ground.

Justice Thomas asks the Biden administration's lawyer whether there are other tools and methods OSHA could have used instead, rather than the vaccine mandate.

She says that the requirement is the "single most effective way of targeting" what OSHA is seeking to combat, including serious illness, transmission etc.

"Vaccination provides protection on all of those fronts," she says.

Justice Alito asks the government about a possible administrative stay. He notes that the mandate was issued on Nov 5. He therefore asks what difference a brief administrative stay of a few days would make, considering that the implementation could lead to job losses.

The government says the court can enter the stay if it wishes, but does believe there is a "grave danger" for every day the mandate is not in effect.

Breyer pushes back against the conservative justices, saying it will lead to thousands more hospitalizations.

Currently masking for unvaccinated workers will be the only thing required, and the testing requirement comes in in early February.

Chief Justice Roberts makes reference to a tweet retweeted by White House Chief of Staff Ronald Klain, which described the OSHA mandate as a "workaround."

"I mean, this has been referred to the approach as a workaround. And I'm wondering what it is you're trying to work around?" he asks.

The government, arguing in favor of the OSHA mandate, is now making its case before the court, pointing to the deadliness of the pandemic and the necessity of a strong response.

Thomas asks Solicitor General Elizabeth Prelogar who is not adopting those practices, whether it is employers or employees. Prelogar says it is both.

Thomas asks if they would apply this to other infectious diseases, Prelogar says that yes, if the risk factors were there. She notes the blood borne pathogen standard which OSHA has already enacted -- although that is only where employees could apply to blood borne pathogens.

Ohio Solicitor General Benjamin Flowers, representing the coalition of GOP-led states opposing the OSHA rules, was quizzed by Justice Sotomayor on the mandates -- which she again said was not a mandate.

She objected to his claim that Omicron represented a new situation than Delta, given its lesser severity in many instances, as well as his claim that vaccines appeared to be less effective at stopping transmission.

Sotomayor pointed to increased hospitalizations and said that "those numbers show that omicron is just as deadly for the unvaccinated."

"We have over 100,000 children, which we've never had before, in serious condition and many on ventilators," she said.

Justice Thomas, meanwhile, asks Flowers to speak more about the different risks and the vaccine's effectiveness at stopping transmission.

He cites data saying vaccinated over 65s are twice as likely to die as 18-49 who are unvaccinated.

Sotomayor fires back and accuses him of "comparing apples to oranges" and says "lower risk is not no risk." She also says that the unvaccinated put other people at risk.

Justice Amy Coney Barrett asks Keller if he is arguing the power is overly broad and if OSHA could require it for high risk areas like dentistry, meatpacking, healthcare.

"This ETS is so far beyond healthcare and what Congress defined as high risk work places," he says

Barrett then asks if he would be here arguing against this standard if it was just masking and testing -- no vaccines. He says yes, because it is still a medical procedure

Even if it were just masking, he says that OSHA "doesn't have the ability to set a nationwide COVID rule by emergency rule."

"OSHA does not have that power," he says.

Justice Sotomayor is telling Keller that the OSHA vaccine requirement is not a mandate.

‘It’s something totally different," she says.

This appears to be tapping into a claim that, because the mandate also allows for mandatory vaccinations to be substituted by weekly testing instead, it is therefore not a mandate.

OSHA says this in its Vaccination and Testing Emergency Temporary Standard (ETS) which covers employers with 100 or more employees.

"The ETS requires covered employers to establish, implement, and enforce a written mandatory COVID-19 vaccination policy with an exception for employers that instead establish, implement, and enforce a written policy that requires unvaccinated employees to undergo weekly COVID-19 testing and wear a face covering at the workplace instead of vaccination."

https://www.osha.gov/sites/default/files/publications/OSHA4159.pdf

So far all three liberal justices on the court have made it clear that they would back the federal mandate, and have in fact appeared somewhat astonished by the opposition to it.

Justice Breyer points to the increase in cases and hospitalizations across the country due to Omicron, and asks how it can be in the public interest.

"How can it conceivably be in the public interest with three quarters of a million people, I don't know how many today, you have hospitalization figures growing by factors by 10, you have hospitalizations near the record, at the record…how can it be in the public interest, which is a requirement," he says. "That's what I want to hear the answer to."

Keller warns in response: "This is going to cause a massive economic shift in the country, billions and billions of nonrecoverable costs."

He warns that only 28% of employers can find adequate weekly testing.  He also argues that if Congress intended for OSHA to have that kind of power, it should have clearly stated so.

"The question isn't what this country is going to do about COVID, it’s who gets to decide that," he says

The Supreme Court is hearing arguments on the OSHA vaccinate mandate

Justice Kagan pushes back against the claim that the mandate was overstepping the mark, arguing that it is a historic public health emergency and therefore requires similar action.

“Its an extraordinary use of power taking place in an extraordinary situation," she says.

"We all know what the best policy is, we know the best way to stop spread is for people to get vaccinated and to stop serious illness is for people to get vaccinated," she says.

"The second best is to wear masks."

"Why isn't that necessary, what else should be done?” she asks Keller.

The attorney says states and businesses could have those policies instead, and says that OSHA jumped to a vaccine mandates when it could have offered guidance or other policies instead -- including notice and comment.

From Fox News' William Mears:

The Marshal has gaveled the Court to order, and Chief Justice has announced the first case to be argued and introduced the first attorney to speak.

Justice Sotomayor is not on the bench, she has decided to participate remotely from her chambers in the court building. Sotomayor has been the only justice to regularly wear a mask when attending arguments in person in previous cases. She has diabetes. 

The first attorney to speak is Scott Keller, representing the Natl. Federation of Independent Business. 

Good morning and welcome to Fox News' live blog covering the oral arguments before the Supreme Court on a case challenging President Biden's COVID-19 vaccine mandates.

The responses and questions from the justices will likely be watched closely for signs of how they will ultimately rule on a question that has divided the country -- whether the government has the ability to mandate a vaccine for businesses and employees.

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With the Biden administration citing a "grave danger" to public health caused by unvaccinated Americans, the Supreme Court will hold a fast-tracked, high-stakes public session Friday to decide whether the U.S. government can begin enforcing sweeping COVID-19 vaccine requirements affecting nearly 100 million workers.

The justices will hear separate oral arguments over federal vaccine and testing rules for larger businesses and vaccine mandates for health care workers at facilities receiving Medicaid and Medicare funding. Enforcement of the policies – announced in November – has been put on holding pending resolution in the high court. Written rulings could come within a matter of days.

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