President Joe Biden continues to face widespread legal challenges against his various federal COVID-19 mandates.
“Difficult to draw firm conclusions”
In a piece published by Breitbart, Kris Kobach wrote: “Although it is difficult to draw firm conclusions from the questions and statements made by the Justices during oral arguments, several of the Justices revealed their thinking on the matter.”
He went on to note that the court’s progressive wing appeared willing to allow the mandate to go into effect.
Kobach noted that Justice Elena Kagan referenced the dangers of COVID-19 as a motivation for a vaccine requirement. For her part, Justice Sonya Sotomayor agreed that the “unprecedented amount” of deaths caused by the pandemic was a convincing factor.
Fellow liberal Justice Stephen Breyer asserted that he found it “unbelievable” that anyone would argue a vaccine requirement for millions of private-sector employees is not in the public’s best interest.
As Kobach explained, the three left-leaning justices seemed to accept as reasonable the Occupational Safety and Health Administration’s estimate that 1-3% of employees might quit rather than comply with the vaccine mandate. He concluded that the actual number would likely be much higher.
“Trying to squeeze an elephant into a mousehole”
“It is not remotely realistic,” Kobach said of the OSHA prediction. “One of the parties that I represent in this litigation, DTN Staffing — a company that provides nurses to medical facilities in the northern Midwest — estimates that 40-50 percent of its nurses will quit if they are forced to get the vaccine or test weekly.”
As for the high court’s conservative majority, at least two justices seemed similarly skeptical of the mandate’s legality.
Justice Clarence Thomas noted that state and local agencies could still act even if the OSHA mandate was struck down and Justice Samuel Alito described the use of OSHA to implement the mandate as akin to “trying to squeeze an elephant into a mousehole.”
In Kobach’s estimation, at least two of the three justices appointed by former President Donald Trump were leaning against upholding the mandate.
He noted that Justice Neil Gorsuch suggested that the matter should be resolved by “the states and in the halls of Congress” and Justice Brett Kavanaugh pointed out that OSHA had not imposed vaccine mandates in the past.