Supreme Court schedules January 7 oral arguments in challenges to Biden vaccine mandates

By Tierney Sneed and Ariane de Vogue, CNN

The Supreme Court said Wednesday it is scheduling oral arguments for January 7 in the cases challenging the Biden administration’s Covid-19 vaccine requirements for large employers and certain health care workers.

The arguments were scheduled after Supreme Court Justices Samuel Alito and Brett Kavanaugh were asked to intervene in lower court disputes over the mandates. Kavanaugh had been asked by challengers to the employer mandate to reverse an appeals court ruling that said the administration could enforce its vaccine-or-testing rules for large companies.

Kavanaugh and Alito had separately been asked by the Justice Department to reverse appeals court orders against the health care worker requirement, which applies to health care staff at providers that participate in Medicare and Medicaid. The appeals court orders have left the mandate frozen in about half the country.

For now, the court is leaving in place the status quo around the requirements. The Biden administration has said it will not begin enforcing the employer mandate until January 10, and the government has said it’s not implementing the health care worker mandate while the legal challenges play out.

The White House said Wednesday that it is “confident in the legal authority for both policies.”

“Especially as the US faces the highly transmissible Omicron variant, it is critical to protect workers with vaccination requirements and testing protocols that are urgently needed,” White House press secretary Jen Psaki said in a statement. “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.”

The court’s rare move to bypass the normal process and to hear oral arguments now comes as the coronavirus pandemic rages globally and the Omicron variant takes hold over the holiday season. The employer mandate at issue would impact some 80 million workers across the country, while the administration’s vaccine requirement for health care workers covers more than 10.3 million people in the United States.

Wednesday’s order said that Kavanaugh and Alito had referred the requests for their intervention in the cases to the full Supreme Court. Previously, the justices had asked for written briefs to be filed by December 30 in response to the requests.

Disputes over executive branch’s power to act unilaterally

In her request that the Supreme Court reverse lower court orders blocking the health care worker mandate, US Solicitor General Elizabeth Prelogar argued that so far the “unprecedented pandemic” has killed 800,000 Americans and “the Secretary of Health and Human Services exercised his express statutory authority to protect the health and safety of Medicare and Medicaid patients by requiring healthcare facilities that choose to participate in those programs to ensure that their staff are vaccinated.” The mandate allows for medical and religious exemptions.

Several lower courts have said that the requirement exceeded the authority Congress had given the secretary, while other judges have backed its legality.

The mandate for large employers had also been found to be an executive branch overreach by one appeals court, the 5th US Circuit Court of Appeals, which blocked the mandate nationwide earlier this year. But its decision was reversed by the 6th US Circuit Court of Appeals last Friday, in a ruling that said the government could implement the requirements.

The Occupational Safety and Health Administration — an agency that falls under the US Labor Department and is charged with assuring safe workplaces — unveiled the new rules on November 4. It said that it had the authority to act under an emergency temporary standard meant to protect employees if they are exposed to a “grave danger.” It requires businesses with 100 or more employees to ensure that their workers are fully vaccinated or undergo regular testing and wear a face covering at work.

In one application filed with the Supreme Court seeking for the mandate to be blocked, lawyers for the Buckeye Institute argued that the Biden administration, “frustrated with a minority of Americans’ medical choices,” has attempted “to control and surveil the vaccination schedules of enormous swaths of the country’s population.”

Another petition from a coalition of business groups said they would be irreparably harmed by the requirement because they will “permanently lose clients and reputation as a result of losing workers who immediately quit and join smaller companies rather than be vaccinated or tested weekly.”

This story has been updated with additional details Wednesday.

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CNN’s Donald Judd contributed to this report.