The Supreme Court announced late Wednesday that it will hear oral arguments in appeals against President Joe Biden’s vaccine mandates for businesses with 100-plus employees and for healthcare workers.

The justices will hear both cases on January 7, just days after the deadlines for the mandates go into effect on January 4. Both orders are only a few sentences and do not specify whether the Court will decide both cases in their entirety or if the judges will instead decide to stay the mandates while litigation continues.

Out of Biden’s five federal coronavirus vaccine mandates, the mandate for large businesses, issued by the Occupational Safety and Health Administration (OSHA), is the largest and impacts 84 million workers. Biden’s Centers for Medicare & Medicaid Services (CMS) mandate for healthcare workers covers approximately 10.4 million people with an additional 2.7 million individuals who will be covered once hired. The OSHA mandate allows for a testing option for unvaccinated employees, whereas healthcare workers can either qualify for a religious or medical exemption or face firing.

President Joe Biden speaks about COVID-19 vaccinations after touring a Clayco Corporation construction site for a Microsoft data center in Elk Grove Village, Ill., Thursday, Oct. 7, 2021. The fate of Biden’s vaccine mandate for larger private employers may come down to a lottery that determines which federal circuit court will consider the matter. Conservative groups have filed challenges to the rule in right-leaning courts, while unions that argue the rule doesn’t go far enough have done so in left-leaning courts. The multiple cases are expected to be consolidated, and it will be up to a random drawing – expected on Tuesday, Nov. 16 -- to determine where that will be.(AP Photo/Susan Walsh, File)

President Joe Biden speaks about COVID-19 vaccinations after touring a Clayco Corporation construction site for a Microsoft data center in Elk Grove Village, IL, Thursday, Oct. 7, 2021. The fate of Biden’s vaccine mandate for larger private employers may come down to a lottery that determines which federal circuit court will consider the matter. (AP Photo/Susan Walsh, File)

How Did We Get Here?

  • The OSHA Mandate

The Sixth Circuit on Saturday dissolved a stay of Biden’s vaccine mandate issued by the Fifth Circuit in November. Though the Sixth Circuit has a conservative judge majority 9-7, a three-judge panel, including a President Barack Obama appointee and a President George W. Bush appointee with a reputation as a liberal-leaning moderate, voted 2-1, with a President Donald Trump appointee penning the dissent.

In response to the federal appeals court decision, numerous business groups, organizations, and even 27 states filed emergency requests asking the U.S. Supreme Court to resolve the split between federal appeals courts on the legality of President Joe Biden’s vaccine mandate for businesses with 100-plus employees. The applicants are asking the justices for a stay while litigation is ongoing, challenging Biden’s coronavirus vaccine mandate. The 27 states and several other applicants additionally requested for their filings to be considered a petition for writ of certiorari, meaning they asked asking the Supreme Court to take up the case this term.

Supreme Court Justice Brett Kavanaugh on Monday asked the federal government to respond to each of the petitions by December 30 at 4:00 p.m., signaling that the Court would be moving forward with the case. 

The applications are In re: MCP No. 165 v. OSHA, Nos. 21A243 through 21A251 (with more applications possibly forthcoming) in the Supreme Court of the United States.

  • The CMS Healthcare Worker Mandate

Last Wednesday, the U.S. Court of Appeals for the Fifth Circuit partially reversed a nationwide preliminary injunction granted by Judge Terry A. Doughty in the U.S. District Court for the Western District of Louisiana in late November, which barred the Biden administration from enforcing the Centers for Medicare & Medicaid Services (CMS) mandate during litigation.

Nurse Katrina Philpot protests against COVID-19 vaccine and mask mandates demonstrate near the state Capitol on Friday, Aug. 20, 2021, in Santa Fe, N.M. Gov. Michelle Lujan Grisham issued a health order this week obligating hospital workers to get COVID-19 vaccines. State workers are also ordered to get vaccinated. Philpot says her Rio Rancho hospital will fire her if she doesn't get her shots. (AP Photo/Cedar Attanasio)

Nurse Katrina Philpot protests against COVID-19 vaccine and mask mandates demonstrate near the state Capitol on Friday, Aug. 20, 2021, in Santa Fe, NM. (AP Photo/Cedar Attanasio)

Following Doughty’s decision, the U.S. government asked the Fifth Circuit — which is widely known as the most conservative-leaning appellate court — to stop or “stay” the nationwide preliminary injunction. A three-judge panel that was uncharacteristically liberal for that court, comprised of Bush 43 appointee Judge Leslie Southwick and Obama appointees Judges James Graves Jr. and Gregg Costa, partially granted the stay, removing the nationwide injunction but allowing Doughty’s preliminary injunction for the 14 states suing the Biden administration to remain.

A separate court in Missouri also halted Biden’s CMS vaccine mandate in ten other states — bringing the initial total of states who do not have to comply with the mandate to 24. Texas joined those states last week, rounding the number of states bucking Biden’s mandate to 25 (half the country) after a district judge granted Texas a preliminary injunction in its own separate lawsuit against the Biden administration. 

On Thursday, Biden’s Department of Justice [DOJ] asked the Supreme Court to stay the Missouri and Louisiana district court preliminary injunctions. The Supreme Court ordered the challengers from both states to respond to the DOJ’s application to stay the lower court decisions by Dec. 30 at 4:00 p.m.

The cases are Biden v. Missouri, No. 21A240; Becerra v. Louisiana, No. 21A241, in the Supreme Court of the United States. 

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