High court sets hearing for Biden vaccine rules

The Supreme Court on Wednesday night announced it will hold a special hearing next month to consider challenges to the Biden administration’s pandemic efforts affecting millions of workers, a nationwide vaccine-or-testing requirement for large employers and a separate coronavirus vaccine mandate for health care workers.

Both policies have been at least partly blocked from going into effect by lower courts after challenges from Republican-led states, and from business and religious coalitions.

It’s unusual for the justices to schedule such hearings on emergency requests. Both will be considered Jan. 7, the Friday before the court was to resume its normal schedule of oral arguments.

One of the cases involves a rule from the Occupational Safety and Health Administration that requires employers with 100 or more workers to have staff vaccinated or tested on a regular basis.

The other is from the Centers for Medicare & Medicaid Services, and it requires vaccination for workers at facilities that get federal funds tied to those programs.

More than half the states and coalitions of business and religious groups are asking the justices for emergency action to block the OSHA rules, which would cover an estimated 80 million workers.

And the Biden administration has asked the court to intervene to lift lower-court decisions that have blocked a vaccine mandate for an estimated 17 million healthcare workers.

The court had called for additional briefs in those cases by Dec. 30. Under its normal procedures, the justices then would decide whether to block or allow the policies while litigation continued.

But the court has been criticized for decisions issued under its emergency docket, which also has been called its “shadow docket.”

This makes the third time this term the court instead has scheduled public arguments. The previous cases involved a controversial Texas law that restricts abortion and one concerning the rights of inmates to have spiritual advisers close by at executions.

The court’s decision to hold hearings on the vaccine policies comes at a time of great tension and uncertainty in the pandemic, with the highly transmissible omicron variant contributing to a sharp rise in infections and causing state and local governments to scramble.

A divided panel of the U.S. Court of Appeals for the 6th Circuit, which last week said the OSHA requirement could go into effect, said the federal government was dealing with an emergency.

The directive, wrote Judge Jane Stranch, “is an important step in curtailing the transmission of a deadly virus that has killed over 800,000 people in the United States, brought our healthcare system to its knees, forced businesses to shut down for months on end, and cost hundreds of thousands of workers their jobs.”

The 6th Circuit’s decision on the OSHA regulations was immediately brought to the high court. More than a dozen challenges have been recorded this week.

The Supreme Court generally has been supportive of decisions by local governments and universities to require vaccination. But the justices also have been skeptical of federal agencies’ power to mandate pandemic-related responses. For instance, it ended a moratorium on evictions imposed by the Centers for Disease Control and Prevention, saying it was beyond the agency’s authority.

The justices’ own workplace has been closed to the public since March 2020.

The court, all of its members vaccinated, began hearing cases in person this fall, but with limited attendance. Lawyers arguing cases and credentialed reporters watching the proceedings aren’t required to be vaccinated but must have received negative test results.