President Joe Biden’s efforts to reduce the COVID-19 pandemic with vaccination warrants have been postponed from the start. But this week, two of its key policies will meet their toughest hurdle yet.
On Friday, the Supreme Court will consider whether Biden’s rules for federally funded healthcare facilities and employers with more than 100 workers can come into effect nationwide. A key question in both cases is whether the federal government has the power to develop and enforce vaccine mandates.
Administration officials have said they are ready to defend the policies and have confidence in their legal basis.
“Especially since the United States is faced with the highly transmissible variant of omicron, it is essential to protect workers with urgently needed vaccination requirements and testing protocols,” said the White House press secretary Jen Psaki in a statement last month, according to the Washington Post.
However, the Biden administration is likely to have every chance to oppose it, as seasoned court observers have pointed out.
“There is reason to believe that the conservative majority of six judges on the tribunal will be skeptical of general claims by the executive branch,” noted Adam Liptak of the New York Times.
Two policies, same controversy
Vaccine rules for large businesses and healthcare facilities were announced this fall and are expected to go into effect this week. If fully implemented, the former, which includes a testing option, would cover about 80 million Americans, while the latter would affect about 17 million healthcare workers, according to the Washington Post.
Both policies were challenged in court almost immediately after their publication. Opponents of the Biden administration include leaders of 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 agreed the Biden administration had broad powers to protect public health, while others said the government had gone too far.
In November, the 5th U.S. Court of Appeals suspended the large business policy nationwide. But then the 6th Circuit restored it after hearing a consolidated case that connected all the related challenges.
“The record establishes that COVID-19 continued to spread, mutate, kill and block the safe return of American workers to their jobs. … To protect workers (government officials) can and should be able to respond to hazards as they evolve, ”Judge Jane B. Stranch wrote in the Sixth Circuit Majority Opinion.
The Supreme Court agreed to review the vaccine mandate for large companies after several groups appealed the 6th Circuit ruling.
In the case centered on the healthcare workers’ mandate, it was the Biden administration that turned to the Supreme Court for help. Federal officials have called on judges to overturn lower court rulings that suspended the policy in 24 states.
“It is hard to imagine a health and safety requirement more pragmatic than a requirement that workers in hospitals, nursing homes and other medical facilities take the action that most effectively prevents the transmission of a virus deadly to vulnerable patients, “wrote United States Solicitor General Elizabeth B. Prelogar in a brief asking the Supreme Court for a ruling.
Read the tea leaves
According to legal experts, it is not surprising that the Supreme Court has agreed to become involved in the cases, but it is noteworthy that the judges have scheduled the pleadings. “It seemed more likely that the court would rule on the claims with a brief order,” as they have done in similar circumstances in the past, SCOTUSblog reported.
In this and other articles, forensic analysts have guessed that the judges were hoping to avoid criticism by bringing at least part of their policy debate behind closed doors. Oral argument will begin Friday at 10 a.m. EST, and the audio will be streamed live on C-SPAN.
Although the court will consider the rules applicable to large corporations and federally funded health care providers separately, the two cases share the same basic set of questions. In addition to assessing the extent of government authority, judges must decide whether vaccine warrants can come into effect while court challenges unfold.
“Judges’ views on whether to grant emergency relief are likely to be influenced by their views on the merits of the underlying challenges themselves,” SCOTUSblog reported.
In other recent battles over the vaccine mandate, the Supreme Court has allowed contested policies to remain in effect. However, these cases involved COVID-19 rules at the state or local level; the court will likely be more suspicious of efforts to force vaccination at the federal level, The Washington Post reported.
“The judges (…) were skeptical of the power of federal agencies to mandate responses related to the pandemic. For example, he ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention, ”the article notes.
In that case, a majority of judges said the CDC did not have the power to impose an eviction ban.
“Our system does not allow agencies to act illegally, even in the pursuit of desirable ends,” the court said in an unsigned notice issued on August 26.
There is no deadline for when the Supreme Court will render its rulings on Biden’s tenure. It took just under six weeks for the judges to render a decision in another fast-track case they heard in November, which involved an abortion law in Texas.