Biden vaccine rule fights prompt clashing calls to high court

U.S. President Joe Biden delivers remarks on the COVID-19 response and the vaccination program at the White House. (Jim Watson/AFP/Getty Images/TNS)

Legal battles over the Biden administration’s two vaccine rules intensified Thursday, with a flurry of Supreme Court briefings ahead of next month’s hearings that test the powers of the federal government to make decisions amid the pandemic.

The administration urged the justices to let its rule for employers remain in effect while litigation against the measure proceeds at a federal appeals court. A group of Republican-led states separately told the high court that the health worker mandate — currently blocked in half the U.S. — shouldn’t resume nationwide while several lawsuits unfold.

The cases challenge the power of federal agencies to take steps to protect workers and patients in the face of a pandemic that’s killed more than 820,000 Americans.

The Occupational Safety and Health Administration’s emergency rule requires employers with 100 or more workers to mandate that their employees vaccinate or get tested regularly. The other rule requires vaccinations for employees at facilities that participate in the Medicare and Medicaid health-care programs.

The high court will consider both vaccine measures during a special session on Jan. 7.

The court on Thursday granted requests for divided arguments in each case. That will allow lawyers representing a coalition of states and a group of business organizations to advocate for halting the OSHA rule, and attorneys for the Louisiana-led alliance of states and the Missouri-led states to argue against letting the health-care vaccine mandate take effect nationwide.


The justices’ decision could determine the practical impact of the shot-or-test rule, which is set to expire in its current form in May. Employers have until Jan. 10 to comply with most of its requirements.

OSHA properly determined that the coronavirus is a new hazard, exposure to it presents a grave danger to unvaccinated workers, and an emergency regulation was necessary to protect them from getting COVID-19 on the job, government lawyers told the justices Thursday.

OSHA issued the shot-or-test rule Nov. 5, but the U.S. Court of Appeals for the Fifth Circuit froze it with a Nov. 6 order. The Sixth Circuit, which took control of the consolidated case after winning a multi-circuit lottery, lifted the stay.

That triggered requests for the Supreme Court to put the regulation back on ice.

A group of 27 states with Republican attorneys general and a coalition of 26 business organizations are asking the high court to halt the measure, arguing OSHA exceeded the powers Congress gave it and that the federal government lacks constitutional authority to issue such a broad regulation.

Health workers

In the health worker mandate case, the Republican-led states are asking the Supreme Court to reject the administration’s request to put a hold on two lower court decisions that are blocking the rule in about half the country.

“The Secretary seeks an extraordinary stay to undo that necessary remedy and immediately reimpose the mandate, creating confusion, causing a logistical nightmare, and unleashing the ‘prevalent, tangible, and irremediable’ harm that the injunction forestalls,” state attorneys general said in a brief.

A high court decision on the health-care worker mandate will be a strong signal of the fate of that rule. If the justices side with the Centers for Medicare & Medicaid Services, they are likely to believe that the agency was acting within its authority to issue a vaccine mandate.

U.S. Solicitor General Elizabeth Prelogar claimed in the Biden administration’s request that “hundreds and potentially thousands of patients may die at hospitals, nursing homes, and other facilities participating in Medicare and Medicaid as the result of COVID-19 infections transmitted to them by staff” if the rule remains halted this winter.

The mandate is blocked in 25 states after the Fifth Circuit ordered the partial reversal of a nearly nationwide injunction issued by a federal court in Louisiana.

Four different lawsuits backed by 26 states said the mandate exceeds the CMS’ statutory authority and that it will worsen staffing shortages. “But for the district court’s preliminary injunction, last year’s healthcare heroes would have become this years unemployed,” the Missouri-led states said in their brief.

The CMS said in the rule that the mandate will help the staffing situation by reducing the amount of sick leave workers use, and attracting newcomers to open positions.

The Louisiana-led states said in a separate brief Thursday that “lifting the injunctions puts patients across the country at risk of losing access to the healthcare they need now.”


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