Biden's vaccine mandates are challenged at the Supreme Court as COVID-19 cases spike nationwide

• The Supreme Court heard challenges to two Biden administration vaccine mandates for private companies and health care workers.
• The Biden administration says it has the authority to impose policies to help get the pandemic under control.

The Supreme Court on Friday heard challenges to federal vaccine requirements for around 100 million workers nationwide in a pair of cases that test a crucial part of the Biden administration's response to the pandemic.

Last fall, President Joe Biden rolled out two COVID-19 vaccine mandates for private companies and healthcare employees in a bid to get more workers protected against the virus, keep the economy open, and bring the pandemic under control. But Republican officials and businesses immediately put up a fight, claiming the rules are government overreach. The showdown has now reached the Supreme Court.

"This is the deadliest pandemic in US history and workers are dying because of their exposure to the virus at work," US Solicitor General Elizabeth Prelogar told the court on Friday on behalf of the Biden administration.

"It's a bureaucratic power move that's unprecedented," Louisiana Solicitor General Elizabeth Murrill told the court, arguing against the vaccine mandate imposed on healthcare workers.

The cases were brought to the highest court on an emergency basis. Typically, the court responds by handing down decisions without a full briefing or oral arguments. But the court decided to speed up the cases and scheduled a special session to hear arguments on them. The move comes as the highly contagious Omicron variant drives a surge in COVID-19 infections and vaccine mandates remain a politically divisive topic.

Vaccine mandates apply to 100 million workers

One of Biden's policies, issued by the Department of Labor's Occupational Safety and Health Administration (OSHA), orders large private companies with over 100 employees to get their workers vaccinated or tested weekly. The rule applies to roughly 84 million workers and allows religious exemptions.

The other mandate, issued by the Department of Health and Human Services' Centers for Medicare & Medicaid Services, requires vaccinations for healthcare workers at federally funded facilities. The rule makes exemptions for medical and religious reasons.

Biden announced the measures on November 4 to increase the nationwide vaccination rate and prevent further COVID-19 infections. The White House said in a statement at the time that while most American adults have gotten their shots, millions still haven't, so "more vaccinations are needed to save lives, protect the economy, and accelerate the path out of the pandemic."

Several Republican-led states, a coalition of businesses, and other opponents challenged the regulations. They argue that the Biden administration does not have the legal authority to impose such sweeping policies and that the rules represent an infringement on individual rights. They also express concerns that the requirements could prove counterproductive, harming staffing levels and potentially closing businesses if workers refuse to comply.

The Biden administration has rejected both arguments, claiming the executive branch has the power to issue the mandates, and that workplaces where vaccines are already required have seen an increase in vaccination rates and little fallout. More generally, the federal government says vaccine requirements will prevent unnecessary hospitalizations and deaths.

A federal appeals court sided with the challengers and blocked the OSHA policy on November 6. But another federal appeals court reinstated the measure on a December 17, so the challengers brought their case to the Supreme Court. The Biden administration set a January 4 deadline for the rule to take effect, but postponed it to January 10 amid the legal battle.

Lower courts have been divided on the vaccine mandate for healthcare workers. One federal appeals court dismissed a challenge. But two other courts blocked the requirement from taking effect in about half of US states, prompting the Biden administration to appeal.

'Why doesn't Congress have a say?'

The court on Friday heard roughly 3 1/2 hours of oral arguments for each mandate.

On the OSHA policy, the justices appeared split along ideological lines. The court's conservatives seemed skeptical, while the liberal justices said it's an appropriate response to a once-in-a-century pandemic.

Chief Justice John Roberts, a conservative, questioned if states or Congress should decide vaccine requirements instead of federal agencies.

"Why doesn't Congress have a say in this?" Roberts asked. "Why isn't this the primary responsibility of the states?"

Meanwhile, Justice Stephen Breyer, the most senior liberal on the court, said, "It would be unbelievable to be in the public interest to stop these vaccinations."

"What else should be done?" liberal Justice Elena Kagan asked. "It is obviously the policy geared towards preventing the most sickness and death and the agency has done everything but stand on its head to show, quite clearly, that no other policy will prevent sickness and death to anywhere like the degree this one will."

Kagan also commented on the historic nature of the public health crisis.

"This is a pandemic in which nearly a million people have died," she said. "This is the policy that is most geared to stop all this."

However, some of the court's conservatives seemed more receptive to the Biden administration's mandate on healthcare employees who work at facilities that receive federal funding.

Justice Brett Kavanaugh called the situation "very unusual" given that states are challenging the mandate and that the hospitals and health care facilities affected by the policy "are not here complaining about" it.

"What are we to make of that?" he asked.

The reality of the pandemic also seeped into Friday's proceedings. One justice, Sonia Sotomayor, participated in the arguments remotely, but the court did not elaborate why. Two lawyers challenging the mandates argued remotely as well after testing positive for COVID-19. Justice Neil Gorsuch was only justice in the courtroom who didn't wear a mask.

Supreme Court has upheld other vaccine mandates

The vaccine challenges come before the court as COVID-19 cases surge nationwide. Over 100,000 people are currently hospitalized with the virus, and more than 800,000 Americans have died from COVID-19 since the start of the pandemic, according to federal health data. Public health experts say that vaccination is key to preventing severe illness and death from coronavirus.

The Supreme Court has upheld multiple vaccine mandates, including a statewide requirement for healthcare workers in Maine, a New York City requirement for public school teachers, and an Indiana University requirement for staff and students.

Yet the cases before the court right now are different because they consider whether the executive branch overstepped its authority. The court is also made up of 6-3 conservative majority, which has previously struck down a Biden administration pandemic policy — the CDC eviction moratorium — because of its executive overreach.

The court could hand down its decisions on the vaccine mandate challenges on an expedited basis, meaning in weeks or days.

To be sure, the justices are reviewing whether the mandates can take effect while litigation continues. It's unclear whether the Supreme Court will issue a broad ruling that considers if the mandates are lawful. Either way, should the court agree with the challengers, the outcome could dramatically alter the Biden administration's response to the pandemic.