The Supreme Court has allowed state COVID-19 vaccine mandates. Biden's policies face a steeper climb

John Fritze

WASHINGTON – Brandon Trosclair saw the legal fight taking shape months ago, back when President Joe Biden first outlined the idea of requiring millions of American workers to get a COVID-19 vaccine or submit to weekly testing. 

The Louisiana businessman, who employs nearly 500 people at more than a dozen grocery stores, was among the first to sue in federal court – one of a series of challenges to the vaccine-or-testing mandate that some experts say has raised the most important legal question posed during the pandemic

The Supreme Court is set to hear oral arguments in challenges to two federal vaccine requirements on Friday at a time when the omicron variant is causing infections to soar.

"It's none of my business as an employer to get into the medical decisions of my employees," said Trosclair, a second-generation grocer and former Republican candidate for state legislative office. "I just thought it was incredibly wrong to put that burden on the employer as well as ... on the employee."

Legal experts predict Trosclair’s argument will resonate with the high court, where conservatives now enjoy a 6-3 advantage. While the justices have repeatedly turned away challenges to state and local COVID-19 vaccine mandates, the Biden administration is all but guaranteed to face a tougher reception.

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Lawrence Gostin, a professor of global health law at Georgetown University, said he anticipates "major pushback" from the court’s conservatives. 

"Having said that," he added. "I don’t think there should be."

Brandon Trosclair, who employs nearly 500 people in grocery stores in Louisiana and Mississippi, was among the first to sue the Biden administration over its COVID-19 vaccine-or-testing mandate.

State v. federal

Asserting that "our patience is wearing thin" with Americans who have not gotten the vaccine, Biden announced in November that the Occupational Safety and Health Administration would use its authority to regulate "substances or agents determined to be toxic or physically harmful" to require employers with 100 or more employees to stand up vaccine-or-testing programs.

The requirement, which the administration estimates would cover two-thirds of the nation’s private workforce, is set to take effect Feb. 9. Large businesses that refuse to comply with the mandate face penalties of nearly $14,000 per violation.

The Supreme Court will also hear arguments Friday in a challenge to the administration’s vaccine mandate for health workers who are employed at facilities that accept federal funding, such as through Medicare. The Biden administration has estimated that separate requirement will affect roughly 10 million workers.

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Federal courts have long recognized the power state and local governments have to regulate public health. But the federal government is a different story.  

"There are certain powers that are reserved to the states and this goes all the way back to our nation's founding," said Zack Buck, a University of Tennessee College of Law professor who specializes in health law.

"That means that when it comes to public health authority, the state is often the entity that has the ability to enforce vaccination mandates. And that's why these federal vaccination mandates become much more interesting, much more unsettled."

The Supreme Court this year has repeatedly declined to take up challenges to vaccine mandates in Maine, New York and at a public university in Indiana. Most of those cases were focused on whether states could impose such mandates without including an exemption for religious objections.

The high court's nine justices have all been vaccinated and court spokeswoman Patricia McCabe said Tuesday that all had also received a booster shot.

Preparing a dose of a COVID-19 vaccine in Chicago on Nov. 5, 2021.

Wide implications

If the Biden administration convinces the court that the federal government has a role to play in vaccine-or-testing requirements, then the debate will likely turn to a second critical question: whether Congress gave power to federal agencies to act on their own.

The Occupational Safety and Health Act of 1970 allows OSHA to craft an emergency rule, or emergency temporary standard, when a "grave danger" exists that could expose workers to "substances or agents determined to be toxic or physically harmful or from new hazards." Much of the legal wrangling in the case has involved whether the law allows OSHA to regulate a virus as a dangerous workplace substance. 

The litigation raises fundamental questions about an agency’s power that could have implications far beyond the pandemic, experts say. Some conservatives on the court, such as Associate Justice Clarence Thomas, have long opposed allowing federal agencies to promulgate regulations without specific authority from Congress.

A ruling in the vaccine cases, in other words, could affect other agencies’ ability to issue regulations on the environment, say, or telecommunications.

It’s a question that came up last summer in another COVID-19 controversy. The Centers for Disease Control and Prevention had imposed a moratorium on evictions under a 1944 public health law that gives the government broad power to address public health emergencies. But the law doesn’t specifically allow for an eviction freeze. And so the Supreme Court ruled the CDC couldn't enforce its moratorium. 

"It would be one thing if Congress had specifically authorized the action that the CDC has taken," a majority of the court wrote in an unsigned opinion.

"But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts."

Daniel Suhr, managing attorney at the Liberty Justice Center, which is representing Trosclair, said the outcome in the eviction moratorium case is the "model" for what opponents of the vaccine policies are hoping for this time. The vaccine policies, Suhr said, have "far more economic and everyday impact than the eviction moratorium."

President Joe Biden discusses the COVID-19 vaccine for children ages 5-11 on Nov. 3, 2021.

Lower courts split

Federal appeals courts have split over the OSHA and health care worker requirements.

The New Orleans-based U.S. Court of Appeals for the 5th Circuit blocked implementation of the OSHA regulation in November, calling it "staggeringly overbroad." But weeks later, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit lifted that order with a 2-1 majority finding the rule appeared to be within the agency’s power.

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Lower courts have also disagreed over the legality of Biden’s mandate for health care workers, with the Atlanta-based U.S. Court of Appeals for the 11th Circuit allowing the requirements to continue but the 8th and 5th Circuits blocking its enforcement.

Both regulations are now on an unusual procedural course at the Supreme Court, scheduled for oral argument even though the challenges are emergency appeals. The court rarely sets arguments for such cases and often disposes of them without a formal written opinion.

The arguments will now give the justices a chance to air their thoughts publicly on vaccine requirements for the first time since the pandemic began. 

"This is perhaps the most important case in the pandemic era," Gostin said. "The justices couldn’t give short shrift to the president's signature effort to keep Americans safe."