Update on the Vaccine Mandates cases now being considered by the Supreme Court of the United States; dockets accessible at the links in the quotation above. Briefs were filed today, and final reply briefs are due Monday. Oral arguments will be held on Friday, January 3, beginning at 10AM EST.
Reply briefs were filed today (Monday, Jan. 3) in the
four vaccine mandate cases which will be argued at the Supreme Court this Friday. Think you had a busy New Years weekend? In four days, some excellent lawyers frantically churned out hundreds of pages of legal arguments for these and their supporting briefs. Mark Twain (co-host of the American Adventure in Epcot) is
often mistakenly quoted as saying: "If I'd had more time, I'd have written a shorter letter." What he
actually said is more interesting and more complete: "“you’ll have to excuse my lengthiness – the reason I dread writing letters is because I am so apt to get a slinging wisdom & forget to let up. Thus much precious time is lost." That's likely here, since there won't be time for Supreme Court Justices and clerks to review, absorb and reflect on all the arguments made.
The Replies were generally well-written and persuasive. Judged on their own, each Reply made a strong case:
President Biden's federal government brief in the
Medicare medical facilities cases went point-by-point through the arguments for why health care was different, based on the statutory language, the fact that government payments and contracts were at issue, and the strong governmental interests in protecting lives. The
business communities' brief in the
OSHA workplace rule cases was the mirror image of the federal Reply, stressing how the emergency rule was an outlier beyond earlier cases, was much broader than needed (as well as not targeted to the actual problem), and would likely affect much more than simply workplaces.
But given the limited time involved, it's probably better just to look at these Replies as summarizing each parties' positions, rather than making new or better arguments. So, some summaries:
Biden Federal brief, Pp. 2-3, 30:
This is not a case where an agency is acting outside its expertise or regulating in an area Congress has not authorized. Nor do these cases involve any federal intrusion into matters reserved to the States. Instead, a federal healthcare agency adopted a familiar health and safety requirement to protect patients in the federal healthcare programs the agency administers, pursuant to express statutory authority to do just that.
The ongoing COVID-19 surge has driven case rates to new highs -- up more than fourfold since the Secretary issued the rule in early
November and nearly threefold since the government filed its applications just over two weeks ago. ...
The rule has never been more necessary than it is now, as the virtually unanimous support of healthcare organizations demonstrates. Absent stays, the preliminary injunctions will likely result in hundreds or thousands of deaths and serious illnesses from COVID-19 that could otherwise be prevented. Respondents’ speculative assertions about the rule’s effect on staffing pale in comparison to the overwhelming public interest in saving lives and preventing serious illness.
...
In short, granting a stay pending appeal may save hundreds or thousands of lives and would not preclude granting meaningful relief in the unlikely event that respondents ultimately prevail.
Business communities' brief, Pp. 1, 25:
Unless this Court immediately stays the ETS’s effective date, on January 10, America’s businesses will immediately begin incurring billions in nonrecoverable compliance costs, and they will lose employees amid a preexisting labor shortage. The ETS will irreparably injure the very businesses that Americans have counted on to widely distribute COVID-19 vaccines and protective equipment to save lives—and to keep them fed, clothed, and sustained during this now two-year-long pandemic. OSHA’s sweeping regulatory dictate will convert hundreds of thousands of businesses into de facto public health agencies for two-thirds of America’s private employees.
...
COVID-19 is a general, society-wide public health issue for the appropriate federal, state, and local public health agencies to address. It is not a distinctly occupational issue, and OSHA may not pass the buck to America’s private employers. The federal Government instead should allow businesses to focus on doing their jobs: sustaining commerce during a worldwide pandemic for the benefit of all Americans. At the same time, state and local health officials can continue performing their jobs at finding public health solutions, with the support of the crucial federal resources offered by the President.
The likely reason the Supreme Court decided to hold quick briefing and arguments in these important cases was to be sure that everyone saw that all the important issues were explored and considered. That would bolster the legitimacy of the decisions in the eyes of the public, which is always important when a case involves what lawyers call "rights vs. rights." (And at this level, every case involves conflicting rights and interests.) Mission accomplished here.