LIVE – Updated at 18:33
The federal Covid vaccination requirement for businesses with more than 100 workers and healthcare facilities is being challenged in the supreme court.
Joe Biden’s addressing reporters’ questions earlier at the White House on coronavirus, specifically, whether Covid is “here to stay”, was almost certainly prompted by developments earlier this week where former health advisers to the US president life with the virus present in society being the new normal.
The Washington Post reported yesterday:
Six former health advisers to President Biden’s transition team released a series of journal articles on Thursday calling for a “new normal” in the nation’s approach to fighting the coronavirus and other viral threats.
In the articles, the advisers lay out dozens of recommendations, sometimes explicitly and often implicitly criticizing the federal response. For instance, they urge the administration to create a “modern data infrastructure” that would offer real-time information on the spread of the coronavirus and other potential threats, saying inadequate surveillance continues to put American lives and society at risk.
They also suggest investments in tests, vaccines and prevention beyond what the White House has done, such as mailing vouchers to Americans that could be used to obtain free, high-quality face masks.
“We’re trying to take the next steps, to anticipate where we need to be in the next three to 12 months,” said Ezekiel Emanuel, the University of Pennsylvania bioethicist who coordinated the effort. In an interview, Emanuel characterized the advisers’ articles, which were published in the Journal of the American Medical Association, as an “outline of a national strategy … to find a new normal.”
Rather than continuing in “a perpetual state of emergency,” he and the others argue, the United States must shift to a strategy of seeking to live with the virus by suppressing its peaks, rather than attempting to eliminate it.
Asked on Thursday whether Biden believed the virus was here to stay, and whether health officials had read the JAMA articles, White House press secretary Jen Psaki said, “the president’s ultimate goal continues to be to defeat the virus.” The rest of the WaPo article is here.
This morning, Biden said he did not think Covid is here to stay – then emphasized that he meant it was not here to stay in the current, out of control, pandemic situation we’ve all been dealing with for two years now.
He indicated that surging infections should not be the new normal and that the US could get control of the pandemic. But that the virus itself appears here to stay.
‘We’re going to be able to control this’ – Biden
Joe Biden, speaking just earlier at the White House about the coronavirus pandemic, also added to his remarks about the norm of periodic surges in infections.
“We’re going to be able to control this,” he said of the pandemic.
The US president added: “The new normal is not going to be what it is now, it’s going to be better.”
Although the pandemic has ebbed and flowed in the two years it has been dogging the US, through the last year of the Trump administration and the first year of the Biden White House, at no point have the federal public health authorities been able to declare that the situation is nationally under control.
Just before July 4 last year, Biden spoke of the US being on the verge of declaring “independence from the virus”, but that was before the Delta variant took hold, despite the nationwide availability of safe and effective vaccines.
Through the summer and into the fall, almost 100% of deaths from coronavirus were among those who had not been vaccinated.
The Omicron variant burst onto the scene in December and is now the dominant strain in new infections, which are raging across many states, even though experts tentatively believe that on an individual basis, Omicron appears less severe.
‘I do not think Covid is here to stay’ – Biden
Joe Biden addressed the issue of the persistent coronavirus pandemic, taking questions from reporters after an economic speech at the White House moments ago.
The US president was asked if he thinks Covid-19 is “here to stay”, responding to the fact that former advisers to Biden have said the White House needs to change its messaging about the virus from one of communicating and making policy on the basis of “a perpetual state of emergency” and instead switch to a strategy of adapting to co-exist with the coronavirus.
“I do not think Covid is here to stay,” Biden said. However, he did not talk about trying to eliminate the virus.
“But having Covid in the environment here and in the world is probably here to stay. But Covid as we are dealing with it now is not here to stay. The new normal doesn’t have to be,” he said.
The US reported 662,000 new cases on Thursday, the fourth highest daily figure in the pandemic, according to Reuters figures, almost two years after coronavirus began killing Americans. And the government warned that the surge of the Omicron variant has not yet peaked in the US.
Biden continued: “We have so many more tools we’re developing and will continue to develop that can contain Covid and strains of Covid, so I don’t believe this is [pause] things are very different today than they were a year ago, even though we still have problems. But 90% of the schools are open now, was 98 it’s now down to 90, but..we spent the time and the money in the recovery act to provide for the schools to remain open.”
- The supreme court began hearing arguments from Republican state officials and business groups seeking to block the federal vaccine-or-testing mandate for employers with more than 100 workers and a similar requirement for healthcare facilities.
- After speaking about the new job numbers, Joe Biden told reporters that he does not think Covid-19 is here to stay.
- Per protocol, Nancy Pelosi has extended an invitation to Biden to present the State of the Union address before the two houses of Congress – this year, the date is set for 1 March.
State of the Union set for 1 March
Per protocol, House speaker Nancy Pelosi has extended an invitation to Joe Biden, inviting him to deliver the State of the Union before the two houses of Congress – this year scheduled for 1 March.
The letter reads:
Dear Mr. President:
Thank you for your bold vision and patriotic leadership which have guided America out of crisis and into an era of great progress, as we not only recover from the pandemic but Build Back Better! Indeed, this past year has been historic: with the life-saving American Rescue Plan, once-in-a-century Bipartisan Infrastructure Law and, soon, the truly transformational Build Back Better Act!
In that spirit, I am writing to invite you to address a Joint Session of Congress on Tuesday, March 1, to share your vision of the State of the Union.
Thank you for considering this invitation to speak to the Congress and Country.
Speaker of the House
There’s a lot less fire in this round of arguments about the vaccine-or-testing mandate before the supreme court. Meanwhile, in New York state:
“The flu kills people every year,” Justice Neil Gorsuch said. “Traditionally OSHA does not regulate in this area.”
“Covid-19 is unprecedented,” said US solicitor general Elizabeth Prelogar.
Gorsuch immediately snapped back, bringing up polio and how OSHA has never required a polio vaccine. Then he returned to the flu. “We have flu vaccines. The flu kills hundreds of thousands of people every year. How do we regulate that?” Gorsuch asked.
(The flu results in about 12,000 to 52,000 deaths annually, according to the CDC. The CDC tallied about 385,343 deaths from Covid-19 in 2020, and 385,348 in 2021).
Prelogar responded that the difference between Covid-19 and polio was that virtually all workers at one time or another had been inoculated against polio (92.6% children by the age of 24 months). She also pointed out that the flu was a seasonal virus.
“Are you suggesting it does not pose the same risk?” Gorsuch asked.
“Certainly if there was a similar 1918 influenza outbreak like there was before” then OSHA would consider a similar measure, Prelogar responded.
Quick note that polio is also an odd disease for Gorsuch to bring up as a point against the vaccine-or-test mandate – it was pretty much eliminated from the US because of a robust vaccination effort.
Brian Fletcher, US principal deputy solicitor general, is before the supreme court now, arguing for the Centers for Medicare and Medicaid Services and the policy of vaccine-or-testing.
Justice Clarence Thomas asked if a vaccine was the only way to treat Covid-19.
US solicitor general Elizabeth Prelogar turned the question back to the issue at hand: “It’s certainly the single most effective way to combat all the issues that Osha has identified.” Because the main question at hand here is whether the federal government and Osha (the Occupational Safety and Health Administration) has the power and scope to issue this federal vaccine-or-test mandate for all employers with more than 100 workers and healthcare facilities, and Prelogar answered that at the moment, a vaccine is the best protection that Osha knows of to combat the dangers of Covid-19.
Applications are submitted. Now begins arguments before the supreme court for Biden v Missouri, which focuses on the vaccine-or-test mandate specifically for healthcare facilities.
US solicitor general Elizabeth Prelogar is before the supreme court now, arguing in defense of the federal vaccine-or-test mandate.
Justice Samuel Alito asked if Prelogar would argue against them issuing a stay to decide the case. He got a little prickly in his questioning, asking her if she did not think there was grave danger in the time this case was filed until now.
“We think there are lives being lost every day,” she said, but noted that the administration allowed for the 10 January deadline to allow workplaces to meet compliance.
There’s been a lot of back-and-forth about the efficacy of the Covid-19 vaccine – which, reminder, while everybody here is highly educated in law, nobody is an epidemiologist – and Justice Elena Kagan went hard at Ohio solicitor general Ben Flowers.
“You said we understand that 18- to 29-year-olds, even though they’re not going to die or end up with very serious injuries, they can spread. You don’t doubt that, that they can spread to other people who are more vulnerable?” Kagan asked Flowers.
“That’s right,” Flower said.
“All right,” Kagan said, cutting him off. “Then you say the danger is to other unvaccinated people, older people, immunocompromised people. And you seem to say that the causes to other unvaccinated people, they assume the risk and the agency’s power runs out.”
There appears to be some hedging now in the arguments against the federal vaccine-or-test mandate that not every workplace is at high-risk for Covid-19 spread as others, and therefore shouldn’t be subject to a mandate that requires regular testing or vaccinations.
“I would have thought every workplace was affected by Covid,” Justice Elena Kagan said. “I’m trying to figure out why this is a blunderbuss approach when everybody knows every workplace has been affected by Covid.”
Ohio solicitor general Ben Flowers, who is arguing against the mandate before the supreme court today remotely because he tested positive, responded that even if every workplace has been affected by Covid, it doesn’t make it a workplace risk, it makes a societal risk – he compared it to terrorism.
Scott Keller, the solicitor general of Texas and the attorney arguing against the federal vaccine-or-test mandate, has said Osha (the Occupational Safety and Health Administration) estimates that 1 to 3% of employees will quit if they are either required to test regularly or be vaccinated.
He pointed out that such a loss in the workforce would have a terrible effect on the economy.
“Catching Covid keeps people out of the workplace for extraordinary periods of time,” Justice Sonia Sotomayor said. She also made a note about the unprecedented number of deaths the country is experiencing at the moment as well.
Scott Keller, the solicitor general of Texas and the attorney arguing against the federal vaccine-or-test mandate, is asking for the supreme court to issue a stay for when the requirement goes into effect Monday.
The argument so far is that the federal government is abusing its power in issuing this mandate and that it shouldn’t be up to the federal government to require this. Keller said the effect such a mandate would have on the economy would be detrimental.
“We understand the gravity of the situation, but in balancing the shear size and scope of this emergency power that is supposed to be exercised delicately…we are entitled to a stay,” Keller said.
Wow. One of the attorneys arguing against the federal vaccine-or-test mandate is presenting his case to the supreme court remotely today because he tested positive for Covid-19.
Justice Stephen Breyer asked, “How could it not be in the public’s interest?”
Justice Elena Kagan asks why this current situation – the coronavirus pandemic that has killed more than 832,000 people in the US – doesn’t count as “necessary and grave”.
“What else should be done?” Kagan asked. “It’s obvious the policy that’s geared to preventing the most sickness and death and the agency has done everything but stand on its head to show that no other policy will prevent sickness and death like this one will.”
The supreme court is now in session.
US supreme court to hear vaccine mandate arguments
Greetings, live blog readers. Congrats on making it through the first week of the new year.
We kick off today with the supreme court set to begin hearing arguments from Republican state officials and business groups seeking to block the federal vaccine mandate for employers with more than 100 workers and a similar requirement for healthcare facilities.
The at least two hours of arguments for the two cases are scheduled to start at 10am local time. Because of pandemic protocols, the building is closed to the public, but we will be streaming the oral arguments here.
To recap: last year the Biden administration put in place a mandate requiring that all employers with more than 100 workers and all healthcare facilities must ensure that all their workers are either fully vaccinated or tested on at least a weekly basis. Joe Biden has argued that these policies will strengthen the economy and save lives.
Conservatives in particular balked at the mandate, calling it an overreach of authority, especially as these requirements were not authorized by Congress.
But the lower courts have been divided on the issue, reports the Washington Post. The US court of appeals for the fifth circuit blocked enforcement of the mandate soon after the administration announced the policy for private companies in November. Then the US court of appeals for the sixth circuit dissolved the fifth circuit’s stay, and allowed the rules to go into effect.
The cases involving the mandate for employers with more than 100 workers are National Federation of Independent Business v. Department of Labor and Ohio v Department of Labor, and have been consolidated, as have the the cases involving the mandate for healthcare facilities – Biden v Missouri and Becerra v Louisiana.