Legal Attacks On Biden's Vaccine Mandate Reach Supreme Court

Announcement creates more uncertainty for employers, health care 
workers

The Supreme Court will hear emergency challenges to two of the Biden 
administration's vaccine mandates during a special session in 
January.

The mandates at issue apply to health care personnel and businesses 
with at least 100 employees, affecting tens of millions of workers 
across the nation. A coalition of red states, business groups, and 
religious organizations say both mandates go beyond the 
administration's authority.

The appeals come as the Biden administration is scrambling to scale 
up testing capacity two years into the pandemic. The employer 
mandate underscores the testing gaps, as millions of unvaccinated 
workers could be required to submit to tests they can't access. 
President Joe Biden said in an interview Wednesday that he wished he 
had taken steps to improve the supply of tests earlier, after 
denying his approach was too lethargic during a press conference on 
Tuesday.

The announcement creates still more uncertainty for regulated 
employers. Affected health care workers are supposed to complete 
their vaccination regimens by Jan. 4. And the Occupational Safety 
and Health Administration was slated to begin enforcing the employer 
mandate on Jan. 10. It's unlikely the appeals will be resolved at 
that point, so the agency and covered workplaces will be in a 
holding pattern for the time being.

"The small business economy remains fragile as owners manage several 
challenges such as staffing shortages and supply chain disruptions 
while doing their part to end the COVID-19 pandemic," said Kevin 
Kuhlman of the National Federation of Independent Business. "These 
challenges would be exacerbated by the [mandates]." The NFIB is one 
of the lead plaintiffs in Wednesday's cases.

The employer rule requires businesses with at least 100 workers to 
either mandate vaccinations or keep records on the vaccination 
status of all their employees. Unvaccinated workers must wear a mask 
at all times and pay for regular testing. As an emergency standard, 
the rule will remain in place for at least six months. It's unclear 
if a permanent analog will follow.

OSHA has imposed emergency workplace standards nine times in its 
history, but never to compel a medical procedure. Critics of the 
move stress that OSHA's regulatory authority is tethered to the 
workplace itself, while COVID transmission is possible anytime, 
anyplace.

"A nationwide vaccine mandate that has nothing to do with workplace 
risk is a dangerous and unlawful use of executive power," said Ohio 
attorney general Dave Yost, who leads the red state coalition 
fighting the mandate. "Congress has not given the president the 
power to make personal health care decisions for all Americans who 
just so happen to work at a company with at least 100 employees."

The Sixth U.S. Circuit Court of Appeals upheld the mandate on Dec. 
17, prompting a flurry of emergency appeals to the Supreme Court. 
The Justice Department will respond to those appeals in legal 
filings due Dec. 30. Some 80 million workers are covered under the 
rule.

The health care rule dictates that providers or suppliers who take 
Medicare or Medicaid funds must mandate vaccinations in their 
workplaces. The rule covers about 10 million medical personnel, 2.5 
million of whom are unvaccinated, according to court documents. The 
Biden administration asked the High Court for clearance to enforce 
the directive across the country on Dec. 16, after two federal 
appeals courts put it on hold across 24 states.

Wednesday night's orders mark the third time this term that the 
Court has scheduled oral arguments in an emergency appeal, which are 
usually resolved on the legal papers alone without a thorough 
explanation. The Court's emergency procedures have come under heavy 
criticism in recent months from predominantly left-wing sources. The 
pattern is a sign that some of the justices are sensitive to those 
criticisms and adjusting accordingly.

The cases are No. 21A244 NFIB v. Department of Labor and No. 21A240 
Biden v. Missouri.


https://freebeacon.com/courts/supreme-court-will-hear-emergency-
challenges-to-biden-vaccine-mandates/