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The Supreme Court has upheld state and local vaccine mandates. That may not save Biden’s.

By Tierney Sneed, CNN

A Supreme Court that has declined to block several types of vaccine mandates is now considering whether to allow the Biden administration to require millions of Americans to get Covid-19 vaccines.

While the court has been tolerant so far of vaccine mandates that have come before it — refusing to halt requirements imposed by local and state entities — those implemented by the federal government pose new legal questions that could draw hostility from the conservative majority.

How the 6-3 Supreme Court resolves those cases could have implications for the executive branch’s power to act unilaterally not just on Covid-19. Depending on how the court rules, agencies could be hamstring in any situation where they’re implementing regulations that address changing circumstances without waiting for the slow-moving process of congressional lawmaking.

“This isn’t really a case about emergency public health powers or even vaccination law, so much as it’s a case about how much flexibility do administrative agencies have to respond to a problem or a threat without waiting for specific authorization from Congress,” said Lindsay Wiley, a health law professor at American University’s Washington School of Law.

So far, the Biden administration has run into major headwinds in its effort to defend the federal vaccine rules that have been challenged in court. Three of President Joe Biden’s major mandates — the health care worker vaccine requirement for more than 10 million people, the rules for companies with more than 100 employees and the mandate on some federal contractors — have attracted court rulings against them.

Many of the court decisions blocking the mandates have backed claims of executive branch overreach while playing down the scientific rationale for requiring vaccines.

On January 7, the Supreme Court will hear oral arguments on the federal mandate for health care workers and the testing-or-vaccine rules for large employers. The justices scheduled expedited hearings in the cases, even though the lawsuits are still in a preliminary stage where courts aren’t making final rulings on the merits but deciding whether mandates should be frozen while the litigation plays out.

“There are different issues raised when the entity that is doing the mandating is federal, and not a state actor,” said Zack Buck, a University of Tennessee College of Law professor who specializes in health law. “That goes all the way back to the founding of the country — the police power that’s retained by the states. What kind of authority does the federal government have? What kind of authority do federal agencies have? And does that matter to the Supreme Court? I think the answer is, it might.”

Less leeway to require vaccines than state or private entities

Lower courts have been mostly permissive of vaccine mandates imposed by private companies. State governments, too, have been mostly seen by judges as having broad authority to require vaccines, as established by a 1905 Supreme Court decision that upheld Massachusetts’ smallpox inoculation requirement.

In this current pandemic, the high court’s right wing has expressed concerns about vaccine rules that don’t adequately accommodate religious objections, yet the mandates have stood.

But Biden’s vaccine rules — which do include religious exemptions — have run into claims that the federal mandates encroach on the sovereignty of the states. The 5th US Circuit Court of Appeals, in one of the most aggressive opinions against a Biden mandate, said the vaccine rule for large employers likely exceeded “federal government’s authority under the Commerce Clause because it regulates noneconomic inactivity that falls squarely within the States’ police power.”

Not every lower court considering federal vaccine requirements has taken such sweeping views on the limits of federal authority in this area, and some courts have backed the legality of Biden’s vaccine moves. The employer mandate — which is being implemented by the Occupational Safety and Health Administration — was given the green light by a separate appeals court that wiped away the 5th Circuit’s decision. Other courts have concluded that the federal mandates run afoul of the law because the executive branch is implementing them unilaterally, without express sanction from Congress.

The idea that agencies must have explicit instructions from Congress when regulating matters of significant political and economic weight has been called the “major question” doctrine. The Supreme Court has only loosely sketched out when such limits come into play, but several lower courts have cited the doctrine as reason the federal vaccine mandates should not be allowed to go into effect.

“It’s not itself a very clear doctrine,” said Philip Wallach, a senior fellow at the conservative think tank the American Enterprise Institute. “There’s not a great sense of just how badly [agencies] have to be stretching the statute to run afoul of this doctrine.”

It will be up to the justices to decide whether they want to use the mandate cases before them to better define when agency actions are reaching beyond Congress’ directives.

“For all the sort of ways that [Chief Justice John Roberts] has alienated some of the conservative movement legal folks through some of his rulings, he has seemed interested in disciplining bureaucratic agencies in a number of ways,” Wallach said. “And he’s very interested in the separation of powers.”

In addition to the disagreement between the 5th and 6th circuits over the Biden administration’s unilateral action on the large employer rules, judges have come to different conclusions about the executive branch’s ability to impose vaccine requirements on providers who participate in Medicare and Medicaid.

Judges in Missouri and Louisiana, in decisions left undisturbed by appeals courts, said the Department of Health and Human Services mandate ran afoul of the major question doctrine because Congress hadn’t been clear in its instructions to the agency that it could impose vaccine requirements.

The 11th Circuit pushed back on that logic, however, in an opinion that said Congress did not need to be so specific when it tasked HHS with regulating for the “health and safety” of Medicare and Medicaid recipients.

“To suggest otherwise would mean that Congress had to have anticipated both the unprecedented COVID-19 pandemic and the unprecedented politicization of the disease to regulate vaccination against,” the 11th Circuit said.

Mandates that are on different legal footing

Even though they raise similar questions about executive branch authority, there are also distinctions in the legal footing upon which the health care worker mandate and the OSHA mandate rest.

The agencies are relying on different statutes to implement the rules. They also used different procedural mechanisms to put the policies in place.

In the health care worker mandate cases, the administration has emphasized the power it says the federal government has under the Constitution’s Spending Clause to implement the vaccine requirements. The requirements apply to health care workers — an estimated 10.3 million — at certain providers that participate in Medicare and Medicaid.

The states that have sued the Biden administration over the rules have argued that the regulations infringe upon state sovereignty, with Florida in its legal challenge pointing to a law passed by the state’s legislature barring employer vaccine mandates.

“If somehow the states can get a foothold in regulating a federal program under the federal spending power, it would be profoundly dangerous not only to the Medicare Medicaid programs, but to our system in general,” John Cogan, a health law professor at University of Connecticut School of Law, told CNN.

Still, the Supreme Court has already put some limits on what the government can do with its federal health funding programs. In the Supreme Court’s first Affordable Care Act case, a 7-2 court struck down in 2012 the Obamacare provision forcing states to expand Medicaid in order to continue to participate in the program. Opponents of the new vaccine mandate — which is being implemented by HHS’ Centers for Medicaid and Medicare Services — have pointed to that decision as why the requirement should be shut down.

“The difference here is in [the Obamacare case], the question was it was all or nothing for the states,” Cogan said, whereas in the mandate case, “such a small percentage … of the people in the hospitals were getting booted because they wouldn’t get the vaccine.”

OSHA, meanwhile, is relying on statutory language that says the agency can take steps to protect employees who are “exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful.”

“CMS has used its authority to influence things like flu vaccination rates among health workers,” Wiley said. “This isn’t identical to what it’s done in the past, but it’s not as much of a step. Whereas with OSHA, you can point to instances where they’ve addressed infectious disease risk, but … there are more steps between how the agency has used this authority in the past and how it’s trying to use it now.”

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