Legal Attacks On Biden’s Vaccine Mandate Reach Supreme Court

Challenges mount after lower court clears way for employer mandate

Kevin Daley • December 18, 2021 1:20 pm

Legal attacks on President Joe Biden’s employer vaccine mandate reached the Supreme Court Friday night after a federal appeals court cleared the way for its enforcement earlier in the day.

The justices were flooded with emergency appeals from red states and conservative legal groups within hours of the lower court’s decision. The mandate requires 80 million workers to get vaccinated or wear masks and pay for weekly tests.

The White House is warning employers to prepare for compliance with the mandate despite its uncertain legal prospects, sagging popularity, and relaxed enforcement guidance from the Occupational Safety and Health Administration. The pressure campaign is augmented by blue state authorities who are enforcing mask and vaccine mandates of their own in response to the latest COVID variant.

“Especially as the U.S. faces the highly transmissible Omicron variant, it’s critical we move forward with vaccination requirements and protections for workers with the urgency needed in this moment,” White House spokesman Kevin Munoz said of the Sixth Circuit’s decision.

Vaccine disputes will dominate the High Court’s work going into the new year. The employer mandate appeals arrived at the Supreme Court Friday alongside a separate dispute involving the Biden administration’s vaccine rules for healthcare workers. Those rules, which cover 17 million workers, require any provider that takes money from Medicare or Medicaid to be fully vaccinated by Jan. 4. Those rules are currently on hold in 24 states as a result of decisions from two different federal appeals courts.

Judge Jane Stranch delivered Friday’s 2-1 decision upholding the employer mandate. Stranch said the federal law that chartered OSHA gave the agency broad authority to fight “viruses.” And she framed the administration’s rule as a flexible one that lets employers “choose the policy implementing those requirements that is best suited to their workplace.”

“The virus rages on, mutating into different variants, and posing new risks. Recognizing that the ‘old normal’ is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees,” Stranch wrote.

Judge Joan Larsen dissented from Stranch’s decision.

OSHA announced a grace period for employers in a statement following Friday’s decision. Employers have until Jan. 10 to comply with the rule. Testing requirements won’t be enforced before Feb. 9.

At least half a dozen appeals reached the Supreme Court on Friday night. Challengers include a coalition of red states led by Ohio, religious schools and homeschooling associations, and business groups like the Job Creators Network. Business groups say compliance costs the rule imposes are especially burdensome as they grapple with the double whammy of inflation and staffing shortages.

“This mandate will make it even harder for small business owners to find and keep employees,” Job Creators Network president Alfredo Ortiz said. “The 6th Circuit irresponsibly upheld an illegal rule and expects employers to somehow comply with a complicated regulation in a period of two weeks, including the holidays.”

Many of the appeals draw heavily from a dissent Chief Judge Jeffrey Sutton handed down on Wednesday, which argues the mandate is an unjustified federal overreach. Sutton’s opinion will likely be influential at the High Court, and it provides a useful roadmap for justices inclined to strike the mandate down.

It’s not clear how the justices will proceed. Using ordinary emergency procedures, they could resolve the dispute in a matter of days relying on legal briefs alone, and might give a short explanation for the ultimate result.

But the Court’s emergency procedures have come under sustained criticism of late, primarily from leftwing sources, and they appear to have rankled some members of the Court. As such, the justices might schedule an oral argument and issue a lengthier decision, which would likely take several weeks. The justices followed that route earlier this year in emergency cases involving Texas’ novel abortion law.

Several plaintiffs groups expressed openness to the second route, including the red state coalition and the Alliance Defending Freedom, a conservative cause lawyering group representing religious institutions fighting the mandate.