WASHINGTON (CN) — An unusual session of arguments is on the horizon as the Supreme Court meets Friday to consider a linchpin of the U.S. strategy for overcoming the Covid-19 pandemic that has killed over 800,000 Americans.
The hearing consolidates a slew of challenges that erupted in a matter of days in the fall after two federal agencies adopted vaccine mandates for large private companies and for health care workers.
Even from a court that has previously vetted multiple state and workplace mandates, leaving every challenger to go before its shadow docket empty-handed last year, the federal mandates may face more scrutiny from justices wary of government overreach.
Working in the favor, however, of President Joe Biden is how the court has settled fights over federal government authority in the recent past. Under former President Donald Trump, the justices allowed the government to use general statutes to enact major executive branch actions like the travel ban and border wall funding. If the court were to shoot down Biden’s vaccine mandate, charges of political bias would surely follow.
"A ruling against the mandates would expose the court's majority as partisan,” said Richard Bernstein, an appellate lawyer. “The Supreme Court permitted former President Trump to use general statutes as authority for major executive branch actions on matters arguably related to public safety. … For the court's majority to flip-flop and limit the authority of President Biden's administration under statutes that provide much clearer and more specific support — on indisputably critical matters of public safety — would be an unprincipled exercise of the partisan and policy preferences of those justices."
The Occupational Safety and Health Administration is enforcing the vaccine-or-test mandate that has drawn challenges from business associations and Republican-led states. Around 84 million workers would be impacted by the mandate — which requires weekly Covid-19 testing for unvaccinated employees — if the justices refuse to offer a stay on the rule.
OSHA’s mandate was quickly challenged after it was announced in November. BTS Holdings — a party to one of the initial cases that was not chosen to argue before the justices — initially received a stay against the rule from the Fifth Circuit. All of the cases were reassigned to the Sixth Circuit, however, after a lottery process was convened to handle the onslaught of additional challenges across the country. In December, a panel from the Sixth Circuit overturned the nationwide pause of the mandate that had been ordered by a federal judge.
Business groups led by the National Federation of Independent Business claim that if the vaccine or test mandate goes into effect, American businesses will be hit with billions in additional costs and face labor shortages due to employee resignations.
“The ETS will irreparably injure the very businesses that Americans have counted on to widely distribute Covid-19 vaccines and protective equipment to save lives — and to keep them fed, clothed, and sustained during this now two-year-long pandemic,” the business group wrote in their brief, referring to the mandate by an abbreviation for emergency temporary standard. “OSHA’s sweeping regulatory dictate will convert hundreds of thousands of businesses into de facto public health agencies for two-thirds of America’s private employees.”
The business group, along with the states led by Ohio, claim OSHA does not have the authority to mandate vaccines or Covid-19 testing. They say the agency is tasked with regulating only occupational health and safety risks to employees.
“Every ordinary English speaker would understand this employee-centric language as empowering OSHA to regulate ‘workplace hazards with workplace solutions,’” the brief from the states argues. “The language would not be understood as empowering OSHA to regulate endemic diseases, violent crime, ambient air quality, or any other dangers that cannot fairly be characterized as work-related.”