The court will hear in-person arguments on Friday on emergency requests for orders blocking the vaccine requirements filed by challengers including business groups, religious entities, and various Republican-led U.S. states, with rulings expected soon. Biden and his administration, according to the challengers, have overstepped their authority.
In the past, the court's 6-3 conservative majority has expressed skepticism toward broad federal agency actions.
Decisions against Biden could limit his ability to take broad action to combat a pandemic that has already claimed the lives of approximately 830,000 Americans, with COVID-19 cases driven by the coronavirus Omicron variant on the rise across the country.
The majority of the pandemic has been spent working remotely by the nine justices. When the Supreme Court resumed in-person oral arguments in October for the first time since the pandemic's early stages, the few people permitted to attend were required to wear masks and maintain social distance. Only Sonia Sotomayor, one of the justices, wore a mask in the courtroom during recent arguments.
The public is still barred from entering the courthouse, as they have been since March 2020. To gain entry, lawyers and journalists must take COVID-19 tests, though the court does not require proof of vaccination.
According to a court representative, all nine justices have been fully vaccinated and have received booster doses.
Several religious-based challenges to state vaccine requirements have been rejected by the justices, who have been divided at times. The cases on Friday are the first to put the federal government's authority to issue its own vaccine mandates to the test.
In other pandemic-related cases, the court has supported religious challenges to certain restrictions and lifted the federal government's residential housing eviction moratorium, which was first imposed by former President Donald Trump.
The 6th U.S. Circuit Court of Appeals, based in Cincinnati, lifted an injunction issued by a lower court on Dec. 17 that had blocked the rule requiring workers at businesses with at least 100 employees to be vaccinated or tested weekly. The Occupational Safety and Health Administration (OSHA) issued the mandate, which is part of Biden's drive to increase vaccination rates in the United States, and it affects approximately 80 million workers nationwide.
The healthcare worker mandate applies to the vast majority of the estimated 10.3 million Americans who work in healthcare facilities funded by the government's Medicaid and Medicare programs. While litigation on the legality of the mandate continues, Biden's administration is asking the Supreme Court to vacate orders by federal judges in Missouri and Louisiana that have blocked the policy in half of the 50 states.
'EXPLICIT STATEMENT'
In both cases, the challengers contended that the federal government exceeded its authority by issuing requirements that were not expressly authorized by Congress, citing Supreme Court decisions that limited federal agency power over tobacco and greenhouse gas regulations. According to the challengers, both vaccine mandates are of sufficient economic and political significance to necessitate a "clear statement" from Congress.
Deepak Gupta, a lawyer who filed briefs in support of the mandates, believes the challengers' argument is flawed.
"It allows unelected judges to decide which questions they believe are significant enough to warrant a clear statement on that specific issue," Gupta explained.
Some legal experts believe the healthcare worker mandate has a better chance of surviving Supreme Court review because the regulation only applies to facilities that choose to accept Medicaid and Medicare patients.
"This is merely a requirement for participation in a federal program, not a direct regulation. Second, and more pragmatically, the justices may be hesitant to impose a vaccine mandate on healthcare workers "Sean Marotta, a lawyer for the American Hospital Association, a trade group for healthcare providers that is not involved in the litigation, stated
The justices' time is running out.
The Biden administration has stated that it will begin requiring compliance with the healthcare worker policy on Monday, with companies having until February 9 to set up testing programs. Workers in states where this regulation has not been blocked are required to be fully vaccinated by February 28.
Employers are currently unsure how to proceed, with some concerned about losing employees in a tight labor market if they impose vaccine or testing requirements, according to Todd Logsdon, a Louisville, Kentucky-based lawyer who represents businesses on workplace safety.
"The sooner the Supreme Court issues a decision, the better," Logsdon said of the court.