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Legal Expert: Conservative Justices Bring ‘Markedly Different’ Questions During Vaccine Mandate Oral Arguments
A demonstrator waves a "Let's Go Brandon" flag outside of the U.S. Supreme Court during arguments on two federal coronavirus vaccine mandate measures in Washington, D.C., U.S., on Friday, Jan. 7, 2022.
Al Drago/Bloomberg via Getty Images

On Friday, the United States Supreme Court heard oral arguments against two similar but not congruent COVID-19 mandates under the Biden administration, one dealing with private-sector employees and the other focused on healthcare workers more specifically, but the differences between the two could be enough for the court to rule one mandate is constitutional while the other is not.

The first mandate being challenged is a rule enforced by the Occupational Safety and Health Administration which imposes a “vaccine-or-test mandate.” That mandate requires all employers with 100 or more employees to either receive the COVID-19 vaccine or undergo weekly testing. That case is being challenged by The Daily Wire and several other petitioners.  The other case that was argued before the court on Friday was enacted through the Department of Health and Human Services. That mandate requires all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19, unless they are eligible for a medical or religious exemption, as reported by SCOTUS Blog.

While the two cases both deal with the COVID-19 vaccine and federal power, a constitutional legal expert told The Daily Wire that the questions asked by the justices during each hearing were “markedly different,” possibly indicating the court will rule in favor of challengers to the OSHA mandate.

“The tenor and questions of the conservative justices were markedly different on the second argument dealing with health care facilities,” George Washington University law professor Jonathan Turley told The Daily Wire. “Notably, the conservative justices were far more restrained in the second case in their questions.”

“The nexus between the mandate and health regulations appeared more discernible for key members like Chief Justice [John] Roberts,” he added. “Indeed, conservative justices pressed on standing questions, which is often a sign that some might be looking for an exit ramp.”

That opinion was shared by CNN as well, which noted that conservative justices focused on questioning different portions of the HHS mandate:

Justice Kavanaugh focused in on how the facilities that were the main targets of the regulations were not before the court challenging the requirement, suggested that that the red states that had brought the lawsuits were not the proper defendants for getting the mandate blocked. 

Chief Justice John Roberts, meanwhile, appeared sympathetic to the argument that the Constitution’s Spending Clause gives the federal government authority in the health care worker case that it doesn’t have with the employer mandate. The administration is seeking to implement the health care worker mandate as a condition for their facilities to receive federal health care funding.

But, oral arguments for the OSHA mandate indicated that the conservatives were far more skeptical of the legality of emergency rule.

“The OSHA argument showed a more active and skeptical bench,” Turley explained to The Daily Wire.

For example, Justice Amy Coney Barrett questioned when the “emergency” would end while Justice Brett Kavanaugh pressured pro-OSHA attorneys as to whether or not Congress actually gave OSHA the proper authority to enact such an emergency rule for vaccines at all.

Turley shied away from claiming anything definitive as to how the court will rule, but he offered some hope for private-sector workers and plaintiffs challenging the OSHA ruling.

“There is more reason for the challengers to be hopeful in the first rather than the second argument,” Turley stated. “Of course, predicting outcomes from oral argument is a precarious practice but we may have some indication soon in the form of an administrative stay in the OSHA case if a majority has formed in favor of the challengers.”

The Daily Wire is fighting Joe Biden’s vaccine mandate in federal court. Join us in this fight by signing our petition to OSHA, telling them that you will not comply with this mandate.

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