The Supreme Court is set to hear arguments on two of President Joe Biden’s vaccine mandates in a special hearing Friday, considering whether the Biden administration has the authority to issue the sweeping rules.
The court will review challenges to Biden’s employer vaccine mandate issued by the Occupational Safety and Health Administration (OSHA) ordering businesses with 100 or more employees to require their workers to be vaccinated against COVID-19 or submit weekly negative tests, as well as challenges to the Centers for Medicare and Medicaid Services (CMS) mandate requiring healthcare workers to be inoculated against the virus.
The OSHA mandate was officially issued in early November and was set to go into effect on Jan. 4, 2022 but faced immediate legal challenges from business groups and Republican-controlled states, and was blocked shortly after its implementation by the Fifth Circuit Court of Appeals. However, the Sixth Circuit overturned the Fifth Circuit’s decision in mid-December, sending the case to the Supreme Court.
Plaintiffs are challenging whether OSHA has the statutory authority to issue the vaccine mandate, arguing that Congress did not grant the health agency the authority to implement the mandate.
“Congress did not clearly authorize OSHA to commandeer businesses into implementing a vaccine, testing, masking, and tracking mandate for 84 million Americans,” plaintiffs, led by the National Federation of Independent Business (NFIB), wrote in a filing. “Respondents’ argument betrays their fundamental misunderstanding of the role of Executive Branch agencies.”
The challenges also concern whether the COVID-19 pandemic constitutes a sufficient emergency justifying OSHA’s decision to issue the mandate.
“Congress gave OSHA authority to issue rules without notice and comment in emergencies, when there is a grave danger at the workplace. It’s a very high legal standard to meet,” Karen Harned, executive director of the NFIB Small Business Legal Center, told the Daily Caller News Foundation.
“It’s an emergency temporary standard. And the emergency is not two years into the pandemic,” Harned added.
Plaintiffs have also argued that the mandate will result in harms to businesses, employees and consumers.
“If this rule is not stayed by Monday, people are going to start quitting their jobs,” Harned told the DCNF.
“The Supreme Court can defend small businesses nationwide by following precedent and immediately staying the Biden Administration’s employer vaccine mandate,” Alfredo Ortiz, president and CEO of the Job Creators Network, a key plaintiff in the challenge to the OSHA mandate, said in a statement shared with the DCNF. “This unprecedented government overreach would impose new costs on businesses at the worst possible time and exacerbate the labor shortage and supply chain crisis.”
The Biden administration has maintained that Congress granted OSHA the authority to issue the rule, and has also attempted to prove that COVID-19 constitutes a “grave danger” to justify the mandate.
“The virus manifestly poses a grave danger to unvaccinated workers, who face significant risks from workplace exposure because they are substantially more likely to become infected with COVID-19 and to suffer severe health consequences as a result,” Solicitor General Elizabeth B. Prelogar wrote in a filing.
Plaintiffs challenging the CMS mandate allege that the federal health agency lacks the statutory authority to issue the mandate, also arguing that it will harm the nation’s healthcare workers.
“If the Mandate goes into effect, it will—and has already begun to—disrupt the lives and livelihoods of millions of Americans,” states challenging the CMS mandate wrote in a filing. “CMS estimates it will force 2.4 million currently unvaccinated healthcare workers to either forfeit informed consent and bodily autonomy or their jobs.”
The states also argue that Congress has not expressly granted federal agencies the power to authorize a vaccine requirement, and doing so would be an overreach.
“CMS, through the vaccine mandate, assumes sweeping new federal power over individuals even though Congress has never claimed such expansive authority for itself and even though the Executive Branch expressly disclaimed it only five months ago,” the states wrote.
The Biden administration defended itself from this line of attack, arguing that Congress need not expressly authorize agencies to issue a vaccine mandate for it to be legal for agencies to do so.
“Respondents ask this Court to depart from ordinary principles of statutory interpretation by demanding a clear statement specifically authorizing a vaccination requirement,” the administration wrote in filings. “That approach has no foundation in this Court’s precedents. This is not a case where an agency is acting outside its expertise or regulating in an area Congress has not authorized.”
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