Will Biden’s vaccine mandates survive the Supreme Court?

Michelle Budge, Deseret News

President Joe Biden’s effort to curtail the COVID-19 pandemic with vaccine mandates has faced pushback from the beginning. But this week, two of his key policies will encounter their toughest obstacle yet.

The Supreme Court on Friday will consider whether Biden’s rules for federally funded health care facilities and employers with more than 100 workers can take effect across the country. A key question in both cases is whether the federal government has the authority to craft and enforce vaccine mandates.

Administration officials have said they are prepared to defend the policies and feel confident about their legal footing.

“Especially as the U.S. faces the highly transmissible omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed,” said White House press secretary Jen Psaki in a statement last month, according to The Washington Post.

However, the Biden administration likely has the odds stacked against it, as seasoned court watchers have pointed out.

“There is reason to think that the court’s six-justice conservative majority will be skeptical of broad assertions of executive power,” noted Adam Liptak of The New York Times.

Two policies, same controversy

The vaccine rules for large companies and health care facilities were announced this fall and scheduled to go into effect this week. If fully implemented, the former, which includes a testing option, would cover around 80 million Americans, while the latter would affect about 17 million workers in the health care industry, according to The Washington Post.

Both policies were challenged in court nearly as soon as they were released. The Biden administration’s opponents include leaders from conservative states, business groups and even a pair of religious organizations.

So far, federal officials have had mixed success in defending the rules. Some lower court judges have agreed that the Biden administration has broad authority to protect public health, while others have said that the government went too far.

In November, the 5th U.S. Circuit Court of Appeals put the policy for large companies on hold nationwide. But then the 6th Circuit reinstated it after hearing a consolidated case that linked all the related challenges.

“The record establishes that COVID-19 has continued to spread, mutate, kill and block the safe return of American workers to their jobs. ... To protect workers, (government officials) can and must be able to respond to dangers as they evolve,” wrote Judge Jane B. Stranch in the 6th Circuit’s majority opinion.

The Supreme Court agreed to consider the vaccine mandate for large companies after several groups appealed the 6th Circuit’s decision.

In the case centered on the mandate for health care workers, it was the Biden administration that turned to the Supreme Court for help. Federal officials asked the justices to overturn lower court rulings that have put that policy on hold in 24 states.

“It is difficult to imagine a more pragmatic health and safety condition than a requirement that workers at hospitals, nursing homes and other medical facilities take the step that most effectively prevents transmission of a deadly virus to vulnerable patients,” wrote U.S. Solicitor General Elizabeth B. Prelogar in a brief asking the Supreme Court to weigh in.

Reading the tea leaves

According to legal experts, it’s unsurprising that the Supreme Court agreed to get involved in the cases, but notable that the justices scheduled oral arguments. “It seemed more likely that the court would dispose of the requests with a brief order,” as they have in similar circumstances in the past, SCOTUSblog reported.

In that article and others, court analysts guessed that the justices are hoping to avoid criticism by bringing at least part of their debate over the policies out from behind closed doors. Oral arguments will begin at 10 a.m. EST on Friday, and the audio will be broadcast live on C-SPAN.

Although the court will consider the rules for large companies and for federally funded health providers separately, the two cases share the same core set of questions. In addition to assessing the scope of the government’s authority, the justices must decide whether the vaccine mandates can take effect while legal challenges play out.

“The justices’ views on whether to grant emergency relief will likely be influenced by their views on the merits of the underlying challenges themselves,” SCOTUSblog reported.

In other recent vaccine mandate battles, the Supreme Court has allowed the challenged policies to remain standing. However, those cases dealt with state- or local-level COVID-19 rules; the court will likely be more suspicious of efforts to force vaccination from the federal level, The Washington Post reported.

“The justices ... have been skeptical of federal agencies’ power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention,” the article noted.

In that case, a majority of justices said the CDC did not have the authority to impose an eviction ban.

“Our system does not permit agencies to act unlawfully even in pursuit of desirable ends,” the court said in an unsigned opinion released Aug. 26.

There’s no deadline for when the Supreme Court will release its decisions on Biden’s mandates. It took the justices just under six weeks to issue a ruling in a different fast-tracked case they heard in November, which centered on a Texas abortion law.