Biden Administration’s Covid-19 Mandates Head to the Supreme Court Tomorrow  

Tomorrow, on Friday, January 6, the Supreme Court will hear oral arguments about the legality of forcing vaccine mandates on employees throughout the nation. 

It has been a short, but intense road leading to this moment. It began on November 5, 2021, when the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) to control businesses’ response to Covid-19. On the same day, the Centers for Medicare & Medicaid Services (CMS) released a rule targeting healthcare workers.

Under OSHA’s ETS, businesses with 100 or more employees must require employees to receive experimental Covid-19 vaccinations or to wear masks and take weekly Covid-19 tests (potentially at the employees’ own expense). Notably, this order exists at a time when recipients of Covid-19 vaccines lack recourse for potential adverse events.

Under the CMS rule, health care facilities receiving funding from Medicare or Medicaid were required to ensure that all their employees be fully vaccinated. This stricter rule left no option for weekly testing and covered both clinical and non-clinical employees.

These drastic measures placed the livelihoods of over one hundred million Americans in jeopardy and sparked an intensive legal battle with both sides seeing temporary victories.

OSHA’s ETS Highlights…

On November 6, in response to lawsuits filed by several states, the Fifth Circuit issued a temporary injunction suspending the mandate. A week later, the Fifth Circuit doubled down, issuing a brief, but thorough Opinion, that addressed four traditional stay factors and found that all four factors weighed in favor of a stay.

The relief felt from this decision was only temporary, however, as the Sixth Circuit won a Circuit Court lottery, making it the final Circuit Court arbiter of the case. The Sixth Circuit has conservative leanings, and there was hope that the stay would be extended. However, on December 17, the Court issued a disappointing reversal in a split panel of two to one. (For a breakdown of the Sixth Circuit’s decision, click here.)

The CMS rule Highlights…

During this same period, a similar battle raged around the CMS mandate. On November 30, a Louisiana Federal Court issued a nationwide injunction against the CMS mandate. Two weeks later, on December 15, the Fifth Circuit pared down the order to cover only the twelve states that had sued in that court: Louisiana, Montana, Arizona, Alabama, Georgia, Idaho, Indiana, Mississippi, Oklahoma, South Carolina, Utah, and West Virginia.

The Eleventh Circuit took the opposite approach. On December 6, it sustained the denial of an injunction against the mandate allowing it to live on in Florida, Georgia, and Alabama.

However, on December 13, the Eighth Circuit upheld a Missouri court’s injunction against the mandate that covered Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming.

Under the weight of these decisions, CMS suspended its enforcement efforts pending further proceedings. 

What Lies Ahead…

It was unclear what would happen to the mandates, but most legal pundits correctly predicted that the Supreme Court would take up the matter. On December 22, Justices Brett M. Kavanaugh took up two cases (Biden v. Missouri and Becerra v. Louisiana) covering the OSHA controversy. On the same day, Justice Samuel A. Alito agreed to hear two cases covering the CMS rule (Nat’l Fed’n of Indep. Bus. v. Dep’t of Labor and Ohio v. Dep’t of Labor.)

The Roberts Court, 04/23/2021 – Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor. Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett. Photo by Fred Schilling, Collection of the Supreme Court of the United States.

Each set of lawsuits is scheduled for one hour of oral arguments in front of the Supreme Court on Friday, January 7. While the two cases involve different mandates and regulatory regimes, they also cover overlapping matters of judicial doctrine and major questions doctrine. Ultimately, the outcome of these cases will impact the enforceability of the two mandates, any future mandates, and very likely existing federal contractor mandates as well.

The future of America as a free nation is at stake, and tomorrow’s decision will be monumental. For those who believe in Christ, there has never has been a better time to pray.

Post by: CJ Fisher  

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