Legal Attacks On Biden's Vaccine Mandate Reach Supreme Court

[Happy New Year]

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/

[Happy New Year]

Challenges mount after lower court clears way for employer mandate

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 health care 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’s 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.


https://freebeacon.com/courts/legal-attacks-on-bidens-vaccine-
mandate-reach-supreme-court/