Bloomberg Law
Dec. 23, 2021, 3:21 AM

Supreme Court to Hold Special Session on Biden Vaccine Rules (1)

Greg Stohr
Greg Stohr
Bloomberg News

The U.S. Supreme Court said it would hear arguments on an expedited basis on President Joe Biden’s Covid-19 shot-or-test rule for large employers and his separate vaccine mandate for health-care workers.

The justices will hear both cases at a special Jan. 7 session, weighing whether to let the rules take effect in the face of a barrage of legal challenges. The cases will test the power of the federal government to tackle a pandemic that has killed more than 800,000 Americans.

The more sweeping clash involves an emergency Occupational Safety and Health Administration rule that requires employers with 100 or more workers to make them get vaccinated or be tested regularly.

The justices will hear arguments from business groups and Republican-led states. They argue that OSHA exceeded the powers Congress gave the agency and that the federal government lacks constitutional authority to issue such a sweeping mandate.

“The goal of getting more Americans vaccinated does not allow the executive branch to use regulatory fiat to achieve a significant social, economic, and political change via the limited emergency power that Congress authorized,” 26 business groups led by the National Federation of Independent Business argued.

Ohio is leading a separate group of 27 states challenging the OSHA rule.

A Different Challenge

The rule had been set to take effect Jan. 4, though the agency had said it wouldn’t start issuing citations before Jan. 10. A Cincinnati-based federal appeals court backed the administration in a 2-1 decision.

“The record establishes that Covid-19 has continued to spread, mutate, kill, and block the safe return of American workers to their jobs,” Judge Jane B. Stranch wrote for the court. “To protect workers, OSHA can and must be able to respond to dangers as they evolve.”

The Supreme Court has backed vaccine mandates in other contexts, rejecting challenges to state rules even if they don’t let people opt out for religious reasons. But the latest cases involve different issues about the power of administrative agencies and the federal government.

The other rule, issued by the Centers for Medicare & Medicaid Services, requires vaccinations for employees at facilities that participate in the Medicare and Medicaid health-care programs. The rule requires facilities to provide medical and religious exemptions.

“Delaying the rule would cause serious, tangible harm to public health,” the administration argued. “If the rule remains stayed during this winter’s anticipated Covid-19 surge, 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.”

Earlier: Supreme Court Leaves New Mexico’s Vaccine Mandate in Force

Lower courts are divided on the CMS mandate, and the administration is currently barred from enforcing the rule in about half the country. The rule is being challenged by separate groups of states led by Missouri and Louisiana.

In siding with the Missouri group, U.S. District Judge Matthew Schelp said that “the nature and breadth of the CMS mandate requires clear authorization from Congress -- and Congress has provided none.”

White House Press Secretary Jen Psaki, in a statement late Wednesday night, said “at a critical moment for the nation’s health, the OSHA vaccination or testing rule ensures that employers are protecting their employees and the CMS health care vaccination requirement ensures that providers are protecting their patients.

“We are confident in the legal authority for both policies and DOJ will vigorously defend both at the Supreme Court,” she said, referring to the Department of Justice.

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The Jan. 7 arguments will be the third expedited session of the court’s current term, joining a clash over Texas’ ban on most abortions after six weeks and a case about the role of ministers in the execution chamber.

The showdown will also mark a rare instance -- and possibly the first in decades -- of the court hearing arguments on an application for a stay. The court normally resolves those types of requests through written briefs alone.

The justices have been under increased scrutiny in recent months over their handling of the so-called shadow docket, the stream of emergency requests that has become a major chunk of the court’s work. Critics say the court at times doesn’t adequately explain shadow docket decisions, even when they determine the fate of important government policies.

The OSHA cases are National Federation of Independent Business v. Department of Labor, 21A244, and Ohio v. Department of Labor, 21A247. The CMS cases are Biden v. Missouri, 21A240, and Becerra v. Louisiana, 21A241.

(Updates with White House statement, starting in 14th paragraph.)

--With assistance from Robert Wilkens-Iafolla.

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Greg Stohr in Washington at

To contact the editors responsible for this story:
Elizabeth Wasserman at

Greg Stohr, John Harney

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