Brian Fletcher, U.S. Principal Deputy Solicitor General, representing the federal government in Biden v. Missouri, told justices that Centers for Medicare & Medicaid Services and U.S. Secretary of Health and Human Services Xavier Becerra should be permitted to keep the mandates. However, challengers noted that the rule forces a medical procedure on healthcare workers who could leave the workforce, and leave rural and poor populations in need of care, without any.
“Exercising this kind of power to force the individual to submit to a medical treatment has never ever been something that has been authorized by Congress or done by an agency on an emergency basis,” Louisiana Solicitor General Elizabeth Murrill said. “But I don’t think in this case that justifies them co-opting a quintessential state police power. In fact, the opposite is true.”
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Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett, and Neil Gorsuch all seemed extremely skeptical of the vaccine mandate on the basis that the federal government was extending its reach into inner state policies.
“Could CMS also implement regulations about exercise regimes?” Gorsuch asked, wondering if “substances that must be ingested by hospital employees” could be implemented “in the name of health and safety?”
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Part of this control, Gorsuch hinted, is coming through funding threats.
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“These statutes sometimes constitute, we’re told, 10 percent of all the funding state governments receive. This regulation affects, we’re told, 10 million healthcare workers and will cost over a billion dollars for employers to comply with. So what’s your reaction to that? Why isn’t this a regulation that effectively controls the employment and tenure of healthcare workers at hospitals, an issue Congress said the agency didn’t have the authority to, that should be left to the states to regulate?” Gorsuch asked.
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In response, Sotomayor asserted her belief that “if you want my money your facility has to do this. “This is not an issue of power between the states and federal government. This is an issue of what right does the federal government [have] to dictate what it wants to buy,” Sotomayor said.
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“Your Honor, it is a vaccine requirement masquerading as a condition of participation,” Jesus Osete, Missouri Deputy Attorney General, replied.
During the arguments, Justice Elena Kagan, Justice Stephen Breyer, and the counsel arguing in favor of the mandate continued to spew misinformation about COVID-19 and the effectiveness of COVID-19 vaccines. Kagan repeatedly said that vaccinated workers couldn’t transmit the virus despite numerous confirmations from the Centers for Disease Control and Prevention that the vaccine does not stop viral spread.
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“All the Secretary is doing here is to say to providers, you know what? Basically, the one thing you can’t do is to kill your patients. So you have to get vaccinated so that you’re not transmitting the disease that can kill elderly Medicare patients, that can kill sick Medicaid patients,”
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