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Backbone of Biden’s pandemic response faces high court dissection

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. 

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“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.” 

In the brief for the government, however, Solicitor General Elizabeth Prelogar says workers are being exposed to COVID-19 in their workplaces and the agency has the responsibility and authority to protect them from a deadly disease. 

“OSHA properly determined that SARS-CoV-2 is both a physically harmful agent and a new hazard; that exposure to that potentially deadly virus in the workplace presents a grave danger to unvaccinated employees who are at greatest risk of contracting and spreading the virus at work and suffering serious health consequences as a result; and that the Standard is necessary to protect those employees from the danger of contracting COVID-19 at work,” the agency wrote in its brief. 

Agencies generally have authority to interpret their charge from Congress, except in the rare case that their actions cause a large expansion or change in their authority. This exception is referred to as the major-questions doctrine and would require OSHA to go to Congress to get the authority to mandate vaccines. The business organizations and states taking on the agency are using this rare exception in their argument, which drew an amicus brief from 183 members of Congress.  

“While OSHA misinterprets its textual authority to take the action it attempts here, the lack of a clear statement from Congress that it could do so presents an insurmountable hurdle to the agency’s expansion of the ETS provision of the Occupational Safety and Health Act (OSH Act),” the lawmakers wrote in their brief. “Vaccine mandates — a prototypical state police power — are not within the purview of the OSH Act, let alone something on which Congress intended OSHA to take unilateral action under its ‘emergency’ powers. The ETS Mandate proposed by OSHA cannot stand.” 

The Biden administration and the Department of Health and Human Services are simultaneously defending a vaccine mandate for health care workers at federally funded facilities. Through separate legal battles that have been consolidated for argument before the high court Friday, the vaccine mandate targeting health care workers has been put on hold in 25 states. The Fifth Circuit ruled in December that a nationwide injunction out of Louisiana could only apply to the 14 states pursuing the lawsuit. Days later, the Eight Circuit upheld an injunction for 10 additional states led by Missouri. Texas rounds out the list as the 25th state with its own challenge to the mandate. 

Missouri claims the HHS vaccine mandate is unprecedented and is creating a crisis for health care in rural America.

“The Secretary of Health and Human Services’ sweeping and unprecedented vaccine mandate for healthcare workers threatens to create a crisis in healthcare facilities in rural America,” that state wrote in its brief. “The mandate would force millions of workers to choose between losing their jobs or complying with an unlawful federal mandate.” 

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Meanwhile, the Biden administration has made the same argument but for requiring vaccines. As the government sees it, vaccines are essential to keep patients safe and health care workers healthy. 

“The secretary noted reports that individuals are ‘refusing care from unvaccinated staff,’ which limits ‘the extent to which providers and suppliers can effectively meet the health care needs of their patients and residents,’” the government’s brief states. “The secretary also noted that absenteeism by healthcare staff as a result of ‘COVID-19-related exposures or illness’ has created staffing shortages that have further disrupted patient access to care.” 

An amicus brief filed by multiple former HHS secretaries, administrators from the Centers for Medicare and Medicaid Services, and other health care officials stress that it is critically important to minimize the risk that health care workers contract COVID-19 and the best way to do that is vaccination. 

“There is a consensus of medical experts that the best way to accomplish this goal is to require health care workers to be vaccinated,” the former health care officials wrote in their brief. “That is the recommendation of the Centers for Disease Control and Prevention and it is the position adopted by 60 organizations that together represent virtually the entire health care profession in the United States.” 

Fifteen national medical societies and an organization representing patients and public health were led by the American Medical Association in a brief that says Biden’s mandate must be allowed to take effect.  

“The United States is in an unprecedented and ongoing public health crisis as it battles Covid-19 — a battle that can be won only with widespread vaccination,” the groups wrote in their brief. “While vaccination of all workers is critical to protecting public health and safety, it is even more urgent that healthcare workers be vaccinated: the potential for transmission of the SARS-CoV-2 virus in healthcare settings puts not only frontline workers, but also patients, at risk.” 

Separate from the merits of whether OSHA and CMS are authorized to implement the mandates, the court's recent reputation for partisanship could ultimately doom Biden’s strategy. 

“I believe that both OSHA and CMS are on rock-solid legal grounds … I do worry greatly that the Supreme Court will curtail federal agency public health powers,” said Lawrence Gostin, a professor at Georgetown University and director of the World Health Organization Collaborating Center on National & Global Health Law. “This is a highly conservative court. While I hope the court follows the rule of law and clear scientific consensus, I am not confident it will.” 

The court itself continues to operate under strict COVID-19 protocols. The public is barred from the building, and the small number of reporters and attorneys allowed into oral argument sessions must be masked and tested. All of the court’s justices have been vaccinated and boosted.

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White House Press Office via Courthouse News

President Joe Biden defends the importance of vaccine mandates at an event in an unfinished data center in Elk Grove Village, Illinois, on Oct. 7, 2021.

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