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“It seems to me that the more and more mandates that pop up in different agencies, I wonder if it’s not fair for us to look at this as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why doesn’t this be the primary responsibility of the states?” Chief Justice John Roberts Jr. asked during arguments on federal rules on Jan. 7, 2021. (Credit: Diego M. Radzinschi/ALM) “It seems to me that the more and more mandates that pop up in different agencies, I wonder if it’s not fair for us to look at this as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why doesn’t this be the primary responsibility of the states?” Chief Justice John Roberts Jr. asked during arguments on federal rules on Jan. 7, 2021. (Credit: Diego M. Radzinschi/ALM)

The U.S. Supreme Court’s conservative majority appeared deeply skeptical that the Biden Administration’s vaccine-or-test mandate for large employers was legally authorized, but seemed more inclined to support the vaccine requirement for health care workers in Medicaid and Medicare funded facilities.

The justices heard more than three hours of arguments regarding the two federal agency rules on Jan. 7, 2022, but it was clear that a chasm existed between the court’s conservative and liberal wings over whether the Occupational Safety and Health Administration had statutory authority to issue the “emergency temporary standard” for employers with 100 or more employees. The standard requires employers to give their employees a choice: To vaccinate or to test weekly and wear masks in the workplace.

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