The Principal US Deputy Solicitor General Brian Fletcher presented a brief argument supporting the Secretary’s authorities re covered providers for their participation in Medicare and Medicaid.
Justice Thomas asks what else authorizes the Secretary to do this, and the Deputy Solicitor General says the Secretary simply added an additional category. Thomas elicits the fact this has never been done before.
Thomas then poses the fact that the vaccine could have negative health consequences.
Roberts asked why CMS, OSHA, certain employers? The DSG waffles.
Sotomayor asks if this is unprecedented? The S-G says the costs of the mandate will be (only) 1.3 $billion and the feds would pay much of this. This is a tiny amount in comparison to the trillions spent yearly on healthcare.
Alito asks if the states had clear notice that this mandate could happen when they signed CMS contracts? All providers must comply with the Secretary’s requirements, even as they change, in the interest of patient health and safety.
Furthermore, the cited statutes do not authorize the Secretary specifically to order this. Alito asks where the Secretary’s power ends? It seems the constraint is the requirement for it to benefit patient health and safety. He then lists many organizations that support it.
Alito says the statute says the Secretary must consult with the states, how do you respond? The S-G says he does not have to consult before he issues a rule. Alito said it would be odd to consult afterwards.
Barrett says “This was an omnibus rule” which blew past the text of the 15 different provisions cited. The S-G says the statutory language is of course what the Court should consider. Barrett disagrees that all the provisions give the Secretary authority. The S-G says he is saved by the severability provision which says if one is not useful the others still stand.
Gorsuch says that a statute here prohibits the government from controlling the tenure and employment of healthcare workers at hospitals. He says that merely by spending federal funds on hospitals you cannot commandeer a state or private entity. The S-G is having a lot of problems with this, getting nervous.
This is getting interesting, but I have to go see patients.–Meryl