With COVID-19 cases exploding around the country, the Supreme Court expedited two cases involving the Biden administration’s immunization efforts. The justices announced on Wednesday night, in an unprecedented move, that they will hear oral arguments on two government regulations on Jan. 7: a vaccination-or-test mandate for major employers, and a vaccine mandate for healthcare employees at federally funded institutions.
The cases were brought before the court on an emergency basis last week, and the official question in both instances is whether the government should be permitted to impose the rules while the legal battle over them proceeds. However, the justices’ decisions on whether or not to provide emergency relief will very certainly be impacted by their opinions on the merits of the underlying claims.
The vaccine-or-test order was issued by the Occupational Safety and Health Administration on Nov. 5. It mandates that all firms with more than 100 workers either have their staff completely vaccinated against COVID-19 or have them tested regularly and wear masks at work. Several challenges to the rule have been filed around the country, claiming that the mandate exceeds OSHA’s jurisdiction. These challenges have come from business organizations, religious groups, and Republican-led states, among others. The requirement was temporarily halted by the United States Court of Appeals for the Fifth Circuit in November, but the challenges were consolidated in the United States Court of Appeals for the Sixth Circuit, which reinstated it this week.
The challengers rushed to the Supreme Court, submitting more than a dozen distinct petitions requesting that the justices overturn the 6th Circuit’s decision. Two of those petitions for oral argument – one submitted by a group of trade groups and the other by a group of states led by Ohio – were set on a very accelerated basis by the justices on Wednesday night. Although OSHA has stated that it would not issue citations for failure to comply with the rule until January 10 at the earliest, the 6th Circuit’s judgment restoring the requirement will stay in effect until the Supreme Court acts on the challengers’ appeal.
Last week, the Biden administration asked the court to temporarily enforce a rule issued by the Department of Health and Human Services that requires all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. In over half of the states, lower court judgments prevented the administration from executing the vaccination mandate. The Supreme Court will hear arguments on whether those verdicts should be upheld.
The court set a deadline of Dec. 30 for replies in both cases shortly after receiving the emergency requests last week. The decision to hold an oral hearing on the emergency requests on Wednesday was unexpected: The court appeared to be more inclined to dismiss the requests with a quick ruling, as it usually does on the so-called “shadow docket.” Instead, perhaps in response to criticism of the increased use of the shadow docket to litigate major policy disputes, the justices expedited the cases for oral argument, as they have done twice this year when dealing with emergency relief requests in the fight over Texas’ controversial abortion law and a request by a Texas inmate to have his pastor touch him and pray out loud during his execution.