This was not a quiet term for the Supreme Court, to say the least. But just before Christmas the judges added another series of high profile cases on their file: two cases involving the legality of President Biden’s COVID-19 vaccine mandates. Oral disputes in cases involving mandatory vaccination for some health care workers and mandatory vaccination or testing for large employers will take place on Friday.
It is also not clear where the judges might end up. On the one hand, there is no reason to believe that the conservative judges are reflexively against vaccination: All nine judges are vaccinated, and they have spent much of the pandemic work remotely With restricted personal access to the Supreme Court building. Recently, too, judges have refused to block a wide variety of vaccine mandates, including vaccine requirements for Indiana University students and for Health workers in New York.
On the flip side, the Biden administration might still face significant skepticism from some judges, as the vaccine requirements they have been considering so far affect states and private entities – not the federal government. There is probably also a real question on the minds of some judges as to whether the executive branch has the power to give such broad mandates. Limiting the regulatory powers of federal agencies is an issue that a couple of judges have seemed to be busy working, and legal experts told me that the court’s Conservatives may understand the arguments that the Mandates amount to federal transgression, especially considering her treatment of bidens other pandemic policies and how the cases in the lower courts have fared so far.
“When you do the census, the bias in the results is shockingly predictable,” said Wendy Parmet, professor of health law at Northeastern University. “They basically all have democratic appointments who stick to work [the vaccine mandates]. And almost all of them are crushed by Republican harvests. ”The impact of these cases could extend well beyond this pandemic and severely limit the government’s ability to respond quickly to health emergencies in the future.
The two claims in court on Friday were both rolled out by the Biden administration in early November as part of a more comprehensive push to increase vaccination rates. And the broader request of the two came from the Department of Labor’s Occupational Safety and Health (OSHA), which announced that employers with 100 or more workers must verify that every worker has been fully vaccinated or tested for COVID-19 on a weekly basis. The other mandate came from the Centers for Medicare and Medicaid Services (CMS) and required that medical workers in facilities receiving Medicare and Medicaid funding be fully vaccinated. The Biden government estimates that the OSHA mandate would affect 84 million workers and the CMS mandate 17 million workers.
However, almost immediately after the mandates were announced, a spate of lawsuits were filed in federal courts across the country, and have since revolved around those courts. Republican-appointed judges also raised a number of objections in these cases, including alleging that CMS likely did not have sufficient reason to issue the medical personnel vaccine mandate. That is similar to the reasoning that has sunk many Trump-era policies in court despite other courts saying CMS obeyed the rules.
But these weren’t just boring slang opinions about whether the Biden government had exceeded its limits T‘s and dotted his I‘s when it gave the mandates. Conservative federal judges too the need questioned the vaccine mandates in their judgments downplaying the severity of the pandemic and expressing skepticism about the science behind the mandate. “[I]It remains unclear that COVID-19 – tragic and devastating as the pandemic was – poses a serious threat that justifies the federal government trampling on the rights of sovereign states. ” one of the lower judges wrotereflecting the rhetoric that had appeared days earlier in a statement by the Fifth District Court of Appeals.
And that kind of fiery culture war rhetoric might resonate with some of the Supreme Court justices. After all, last summer the judges kicked out the Biden government’s eviction moratorium, with the unsigned majority opinion saying that the Centers for Disease Control that put the moratorium in place had essentially gotten over their skis. “The CDC has imposed a nationwide moratorium on evictions, relying on a decade-old law that empowers them to take action such as fumigation and pest control,” the judges wrote. “It weighs gullibility to believe that this law gives the CDC the sweeping authority it claims.”
The three Liberal judges disagreed with this view, but it is not difficult to imagine that the Conservative judges would apply a similar logic to the Biden government’s vaccine mandates.
The Biden administration will argue that the vaccination mandate is badly needed to protect the lives and health of countless Americans, but Conservative justices – like other Republican lower court appointments – might not be convinced of this argument, even if they did is supported by experts. It would not be the first time that the judges had a taste of a scientific analysis. In fact, some have already signaled that they think the pandemic is no longer such a major emergency. In dissent From the court’s decision not to block a vaccine mandate in Maine, Judge Neil Gorsuch, who was accompanied by Judges Samuel Alito and Clarence Thomas, implied that the severity of the pandemic would decrease as treatments and vaccines develop – making it more difficult to government intervention like. to justify vaccine mandates.
So far, Judges Amy Coney Barrett and Brett Kavanaugh have not sided with the other three Conservative judges decide to keep the high court from challenges To issue vaccination mandates, which left the mandates effective. This may seem surprising as once Barrett joined the court in the fall of 2020, the court will became very aggressive on the lifting of government restrictions on religious gatherings. But while Barrett and Kavanaugh are skeptical of the mandate for large employers, Parmet told me that getting rid of vaccination requirements for healthcare workers could call into question many other regulations. So it is possible that Barrett and Kavanaugh will be drawn to a middle ground where they maintain the demands on healthcare workers and override the demands on employers.
How this showdown ends doesn’t just matter to the pandemic, however. Since the beginning of Biden’s presidency, it has been clear that the conservatively controlled Supreme Court poses a serious risk to its agenda. Now the time has come to reject either or both pillars of Biden’s efforts to control COVID-19 in the workplace – a decision that could have dire consequences for him and his party during mid-term exams later this year. And more generally, the removal of one or both mandates would likely continue to affect the federal government’s ability to respond quickly to public health emergencies in the future. “It will fundamentally make it more difficult for the government to govern,” said Parmet.