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Supreme Court skeptical of Biden's workplace vaccine rule
  • Updated

WASHINGTON — Fully vaccinated and mostly masked, the Supreme Court’s conservative majority appeared skeptical Friday of the Biden administration’s authority to impose a vaccine-or-testing requirement on the nation’s large employers. The court seemed more open to a separate vaccine mandate for most health care workers.

The arguments in the two cases come at a time of spiking coronavirus cases because of the omicron variant, and the decision Friday by seven justices to wear masks for the first time while hearing arguments reflected the new phase of the pandemic.

An eighth justice, Sonia Sotomayor, a diabetic since childhood, didn’t even appear in the courtroom, choosing to remain in her office at the court and take part remotely. Two lawyers, representing Ohio and Louisiana, argued by telephone after recent positive COVID-19 tests, state officials said.

But the COVID circumstances did not appear to outweigh the views of the court’s six conservatives that the administration overstepped its authority in its vaccine-or-testing requirement for businesses with at least 100 employees.

“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a half-century established law, the Occupational Safety and Health Act, confers such broad authority.

Roberts and Justices Brett Kavanaugh and Amy Coney Barrett probably hold the key to the outcome in both cases, as they have been more receptive to state-level vaccine requirements than the other three conservative justices. Barrett and Kavanaugh also had tough questions for Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer.

The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.” And Justice Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to put that rule on hold. He said that on Thursday there were some 750,000 new cases in the country and that hospitals are full.

Beginning Monday, unvaccinated employees in big companies are supposed to wear masks at work, unless the court blocks enforcement. But testing requirements and potential fines for employers don’t kick in until February.

Legal challenges to the policies from Republican-led states and business groups are in their early stages, but the outcome at the high court probably will determine the fate of vaccine requirements affecting more than 80 million people.

Roberts, Kavanaugh and Barrett seemed to have fewer doubts about the health care vaccine mandate. Kavanaugh said it was a “very unusual situation” that hospitals and health care organizations affected by the regulation were “not here complaining” about the rule but instead support it. “What are we to make of that?” he asked.

The second regulation is a mandate that would apply to virtually all health care staff in the country. It covers health care providers that receive federal Medicare or Medicaid funding, potentially affecting 76,000 health care facilities as well as home health care providers. The rule has medical and religious exemptions.

Decisions by federal appeals courts in New Orleans and St. Louis have blocked the mandate in about half the states. The administration has said it is taking steps to enforce it in the rest.

“I think effectively what is at stake is whether these mandates are going to go into effect at all,” said Sean Marotta, a Washington lawyer whose clients include the American Hospital Association. The trade group is not involved in the Supreme Court cases.

Both vaccine rules would exacerbate labor shortages and be costly to businesses, lawyer Scott Keller argued Friday on behalf of more than two dozen business groups. Without an immediate order from the court, “workers will quit right away,” Keller said.

Administration lawyer Prelogar told the justices that COVID-19 “is the deadliest pandemic in American history and it poses a unique workplace danger.” OSHA has estimated that its emergency regulation will save 6,500 lives and prevent 250,000 hospitalizations over six months.

Nearly 207 million Americans, 62.3% of the population, are fully vaccinated, and more than a third of those have received booster shots, including the nine justices.

Andy Slavitt, a former adviser to the Biden administration on COVID-19, said the vaccine requirements are extremely effective for 15% to 20% of Americans “who don’t like to get a shot but they will and don’t have any strenuous objection.”

The high court is weighing in on administration vaccine policies for the first time, although the justices have turned away pleas to block state-level mandates.

A conservative majority concerned about federal overreach did bring an end to a federal moratorium on evictions put in place because of the pandemic.

Both the vaccination case came to the court on an emergency basis, and the court took the unusual step of scheduling arguments rather than just ruling on briefs submitted by the parties. Unlike in other cases the court hears, a decision from the justices could come in weeks if not days.

Because of the pandemic the justices heard the cases in a courtroom closed to the public. Only the justices, lawyers involved in the cases, court staff and journalists were allowed inside. The public could listen live, however, a change made earlier in the pandemic when the justices for nearly 19 months heard cases via telephone.

The court has been asking arguing lawyers to have negative coronavirus tests and participate remotely if they have positive tests. Ohio Solicitor General Benjamin Flowers, who was arguing against the employer rule, had tested positive for COVID-19 after Christmas, had mild symptoms and fully recovered, but a test on Sunday required by the court detected the virus, a spokeswoman said. He had been vaccinated and had a booster shot.

Louisiana Solicitor General Elizabeth Murrill who was arguing against the health care workers rule, was also arguing remotely “based upon the court’s protocol,” state Attorney General Jeff Landry said. Landry was at the court for Friday’s arguments.

It was the first time since the court returned to in-person arguments in October that lawyers were arguing remotely.

Justice Neil Gorsuch was the only justice to remain unmasked throughout the arguments, which lasted more than 3 and 1/2 hours. He sits between Barrett and Sotomayor. The court did not explain why Sotomayor didn’t take the bench.

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Longview baker organizes 'gratitude box' for retiring police chief
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A Longview baker is organizing a community gift for retiring Police Chief Mike Bishop: a “gratitude box.”

Edible Art Specialty Cakes and Cookies owner Debbie Fontaine got the idea by watching Hallmark movies over the past few weeks. A “gratitude box” or a “thank you, Chief Bishop box” is essentially a box filled with letters, notes and cards from residents.

Fontaine said she has gotten to know Bishop over the years and is his neighbor. She wanted to do something nice to celebrate his more than 30 years of service to the community.

“I thought that is something that our citizens could do,” she said.

So, she got a clear box, and another person is working on vinyl decals to personalize it for Bishop.

“What a nice thing to look back on,” she said.

Fontaine’s goal is to collect more than 7,300 cards, notes and emails so Bishop could have one to read each day for the next 20 years.

“Thank-you’s and favorite memories, I mean, we already had two officers today write memories,” she said.

Fontaine is hoping to collect letters from former and more current officers as well.

“That will be his present from the community,” she said. “It won’t cost anybody anything. The only cost is the most valuable thing of all, their time. Whether it’s two sentences, a paragraph or a letter.”

The box will be presented to Bishop at his retirement party at the end of the month. Fontaine said he has touched a lot of people’s lives over the years.

Bishop will retire at the end of January after 32 years with the department and six of those years as police chief.

For the past 11 years, Bishop has been teaching at Tyler Junior College. After his retirement, he will serve as a professor and coordinator of the Public Administration Program.

Michael Cavazos

News-Journal Photo


Letters written to retiring Longview Police Department Chief Mike Bishop awaiting to be placed in a gratitude box on Thursday at Edible Art. The box containing the letters will be given to BIshop during his retirement party.

“It would be so great if some of our school teachers got the students to write even a postcard and we can pick them up, or they all could write one card together,” Fontaine said.

There are three ways to submit to the gratitude box.

“You can drop by. We have cards and envelopes and pens,” Fontaine said.

The box is located at the Edible Art shop at 504 West South Street in Longview. Notes can also be mailed to the address with “Attn. Chief Bishop” on the envelope. Stories and notes of gratitude can be submitted by emailing with “Chief Bishop” in the subject line.

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Trees removed from Maude Cobb property in advance of balloon race's arrival
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Gregg County is assisting the city of Longview in removing trees at the Maude Cobb Convention and Activity Center in preparation for the arrival of the Great Texas Balloon Race.

In a November letter to commissioners, acting Public Works Director Dwayne Archer requested the assistance of Gregg County Pct. 1 in providing labor and equipment to the city for several projects.

One of those projects will see trees removed from property off Jaycee Drive at the Maude Cobb complex.

The letter cites the move later this year of the annual balloon race from the East Texas Regional Airport to Maude Cobb as the reason for the project and that “the tree removal will provide the organizers greater flexibility with the event.”

The precinct’s assistance to the city was approved during a recent commissioners meeting.

Pct. 1 Commissioner Ronnie McKinney said his crews often are asked to help with city projects, and he has no problem providing manpower.

The city primarily furnishes any materials needed while the county provides equipment, McKinney said.

Great Texas Balloon Race Chair Michelle Ford said she believes the improvements the city is making on the Maude Cobb property will enhance the space for race activities held on the ground, “and of course our event would certainly benefit from those changes.”

The annual balloon race consists of two events — a hot air balloon competition and a festival with music, vendors and other entertainment.

Due to COVID-19 restrictions in 2021, only the competition events were held within the city of Longview.

While the festival portion of the balloon race has not been held in two years, Ford said the event is expected to return in full when it is held June 17 to 19.

Texas abortion law likely to head to state supreme court, could delay decision by months
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In a contentious hearing Friday, a federal appeals court indicated it is likely to send Texas’ restrictive abortion law to the state Supreme Court, a move that could add months or longer before the case is resolved.

Since Sept. 1, abortions after about six weeks of pregnancy have been banned in Texas through a novel law that empowers private citizens to sue anyone who “aids or abets” in a prohibited procedure. The law explicitly removes enforcement authority from state officials, making it extremely difficult to challenge in court.

In December, the U.S. Supreme Court threw out most challenges to the law and left only state medical licensing officials as possible lawsuit targets because they can revoke a doctor, nurse or pharmacist’s license if they violated the law.

On Friday, a three-judge panel from the New Orleans-based 5th U.S. Circuit Court of Appeals heard arguments about where the case goes next. Judges Edith H. Jones and Stuart Kyle Duncan indicated they believe there are state law questions that must first be resolved by the Texas Supreme Court, while Judge Stephen A. Higginson strongly disagreed, arguing the case should be remanded to federal district court.

In a move that surprised court watchers, Jones also raised the idea of taking no action on the case for months, until the U.S. Supreme Court has ruled on a Mississippi abortion case that could overturn the constitutional protection for the procedure.

Lawyers for the abortion providers believe the federal district court route is the best hope to getting the law, originally passed as Senate Bill 8, struck down. If the case is sent to the Texas Supreme Court, it could take months to return to the federal level, leaving the law in effect.

This is exactly what abortion opponents are hoping for.

“While all of these complicated legal questions are untangled, we already every day have our victory,” said John Seago, legislative director for Texas Right to Life. “Courts have allowed this law to stay in effect.”

The odds were clear even before the judges gaveled in on Friday morning. When the court agreed to take up the case, Higginson, who was appointed by President Barack Obama in 2011, wrote a scathing dissent arguing that there was no reason for the 5th Circuit to even hear the case and should instead send it directly down to the district court.

Lawyers for the abortion providers agreed and even filed a motion with the U.S. Supreme Court asking it to intervene. The Supreme Court has taken no action on that motion.

At the hearing, Higginson argued that it was an exceptional step for the 5th Circuit to certify, or send, a case to the Texas Supreme Court after the U.S. Supreme Court had already weighed in. He challenged the lawyer for the state of Texas to provide an example of a time when that had happened before, which she could not do.

Houston appellate lawyer Raffi Melkonian routinely practices before the 5th Circuit and listened to Friday’s hearing. He agreed that it was atypical to get to this stage before certifying to the state level.

“Certifying isn’t weird. Doing it later on in a case isn’t weird. None of that is weird,” he said. “What’s weird is the [U.S.] Supreme Court issued a ruling. And now the 5th Circuit is considering certifying to the state court.”

But Jones argued that it was a necessary step because state courts ultimately have the authority to decide state law, and the judges would have “egg on our faces” if the Texas Supreme Court eventually disagrees with their ruling.

Duncan also raised the question of whether this challenge was actually all that important. At this point, the case is only about whether medical licensing officials can discipline medical providers who violate the abortion law. An injunction in this case would do nothing to change the crux of this law, which allows for countless citizen lawsuits of at least $10,000 against abortion providers.

“The principal injury that you’re seeking to redress here is that the threat of [Senate Bill 8] lawsuits puts a chill on your clients’ provision of abortion services,” said Duncan. “So how would an injunction against these licensing officials redress that at all?”

Marc Hearron, senior counsel at the Center for Reproductive Rights, challenged whether that was the question the 5th Circuit was called to address, but ultimately said it would lessen the burden upon medical providers if their licenses were secure.

The three-judge panel will now consider whether to send the case to the Texas Supreme Court. State supreme courts do not have to take up cases that are certified to them by federal courts, but Melkonian said it’s extremely likely that Texas will.

“The Texas Supreme Court invariably accepts cases now,” he said. “That wasn’t always the case in the ’80s or ’90s, and it contrasts with other [states] in the 5th Circuit, but it’s clearly evident that they accept every case.”

It’s hard to say what the Texas Supreme Court will do with the case, but abortion providers worry it’s a process that could extend the legal limbo they now find themselves in. It also gives state legislators an opportunity to revise the law in a way that explicitly removes medical licensing officials from potential challenge, as Seago said they plan to do.

Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, said this delay is harming pregnant patients in Texas who cannot access abortions after about six weeks of pregnancy, a point at which many don’t even know they are pregnant.

“And it puts providers in a terrible position to deny care patients deserve, that we’re fully trained to provide,” she said. “It’s us that are looking these folks in the eye and saying no. Lawmakers aren’t seeing the impact this is having on real people.”

While it seems likely that the 5th Circuit will rule to send the case to the Texas Supreme Court, Jones did raise another option that would be no better for abortion providers. She asked whether the court should wait to rule on this case until the U.S. Supreme Court had weighed in on Dobbs v. Jackson, another abortion case on their docket.

The high court heard arguments in Dobbs, which concerns a 15-week abortion ban in Mississippi, in December. Those arguments indicated that there may be enough support on the court to significantly weaken or completely overturn Roe v. Wade, the 1973 case that established a constitutional protection for abortion.

“I didn’t expect her to say that,” said Melkonian. “I didn’t think it was an impossible result. I was just surprised to hear it raised explicitly as a suggestion.”