SCOTUS hears oral arguments on Biden vaccine and testing mandates

Eight Supreme Court justices are seen in this courtroom sketch from Friday's proceedings. Justice Sonia Sotomayor was attending remotely.

Nearly an hour and a half after it started, the oral arguments in the health care worker mandate case have ended.

Principal Deputy Solicitor General Brian H. Fletcher wrapped the hearing with a brief rebuttal that did not attract any additional questions from the justices.

The Supreme Court spent about three and half hours total on both cases, in what was a marathon session for a court that rarely hosts oral arguments on Friday.

The court appeared ready to reject of one of President Biden’s most aggressive attempts to combat the spread of Covid-19 — a vaccine-or-testing requirement aimed at large businesses.

But in the separate challenge, some justices seemed more open to a vaccine mandate aimed at certain health care workers. The court heard arguments for almost four hours. The three liberal justices on the court expressed clear approval for the government’s rules in both areas.

The cases come as the number of infections is soaring, and 40 million adults in the US are still declining to get vaccinated.

What comes next was only briefly alluded to during Friday’s session. The cases before the Supreme Court are in an emergency posture, meaning that the court is not being asked to do a full review on the merits on each case.

Rather, the justices are being asked to temporarily put on hold lower court orders while the cases proceed in those lower courts.

For the Occupational Safety and Health Administration’s (OSHA) testing-or-vaccine rules, states are asking the court to put on hold an appeals court order that allows the mandate to be implemented, and in the health care worker case, the administration is asking the justices to lift lower court orders freezing the requirement in several states while the lawsuit plays out.

On these types of emergency requests, the Supreme Court is not required to issue full opinions. It could simply issue one-line orders, that could come at any time.

In contrast, the court typically announces ahead of time when it plans to issue formal opinions — though the court won’t say ahead of time which case it is handing down.

So it’s unclear how quickly we will hear from the court, how much explanation it will give for why it’s doing what it is doing, or even if there will be a heads up that the decision is coming.

A partial ruling could come in record-breaking time given the OSHA mandate for businesses takes effect Monday. The one hint we got was from Justice Samuel Alito, who suggested during the OSHA case that the court might need to issue a brief administrative hold halting the rule, which the administration will otherwise begin implementing next week.

It was not clear how many other justices were on board with that idea, as US Solicitor General Elizabeth Prelogar stressed that the only element of the OSHA rule going into force was its masking requirement for unvaccinated workers. The more burdensome testing requirement for those workers won’t be implemented until February, Prelogar said.

How the Supreme Court goes about its next steps is very important because the reach these cases could have go beyond just the two vaccine mandates in question.

There are challenges to other federal vaccine rules — particularly President Biden’s requirement for certain federal contractors — that are not currently before the Supreme Court but could be implicated by its reasoning in these two cases.?

But besides that, the legal issues prompted by these two cases could apply to a whole host of policy matters — from?the implementation of the Affordable Care Act to the environment or immigration matters — where the executive branch currently has the discretion to issue regulations not specifically laid out by Congress.

Everyone has different reasons for what to decide: While conservative justices looked poised to block Biden’s requirements Friday, it’s not clear from their comments at today’s hearing that they would share the same reasons to do so.

In the employer mandate case, Justices Neil Gorsuch and Brett Kavanaugh were particularly interested in the sweeping arguments made by the challengers that the executive branch did not have the flexibility to issue the vaccine rules without an explicit directive from Congress.

Justices Clarence Thomas and Amy Coney Barrett asked questions about the procedural mechanism OSHA used to roll out the regulation, touching on narrower arguments the challengers are making about why it should be halted.

The conservative justices showed more openness to allowing the mandate for health care workers to go into effect, however. Here too, they raised different reasons for being skeptical of the arguments the states were bringing. Justice Kavanaugh focused in on how the facilities that were the main targets of the regulations were not before the court challenging the requirement, suggested that that the red states that had brought the lawsuits were not the proper defendants for getting the mandate blocked.?

Chief Justice John Roberts, meanwhile, appeared sympathetic to the argument that the Constitution’s Spending Clause gives the federal government authority in the health care worker case that it doesn’t have with the employer mandate. The administration is seeking to implement the health care worker mandate as a condition for their facilities to receive federal health care funding.

Justice Brett Kavanaugh, a critical conservative vote, focused on what the Biden administration says is a procedural flaw in the case that the states are bringing against the mandate.

As Kavanaugh noted, its not individual health care facilities that are subject to the regulations that are before justices arguing against the mandate, but rather states.

Kavanaugh said that health care provider organizations overwhelmingly support the mandate.

“Where are the regulated parties complaining about the regulation?” Kavanaugh said in an exchange with Jesus A. Osete, Missouri’s deputy attorney general, noting in the OSHA case earlier Friday that private employers that are subject to OSHA’s rules were before the court arguing against the regulation.

“There’s a missing element here,” Kavanaugh said.

Two attorneys from states challenging the Biden administration’s vaccine and testing mandates participated in?oral arguments?at the Supreme Court remotely Friday due to the court’s Covid-19 protocols.

In addition, Justice Sonia Sotomayor took part from her chambers, but she is not ill, the court said.

Ohio’s Solicitor General Benjamin M. Flowers and Louisiana Solicitor General Elizabeth Murrill — participated by telephone. Attorneys planning to attend arguments in person must take a PCR Covid test on the morning before arguments.

Flowers had Covid late last year but has recovered, the Ohio Attorney General’s office said.

The Louisiana Attorney General’s office said only that Murrill was absent due to the court’s protocols.

“In accordance with the COVID protocols of the Court, Solicitor General Liz Murrill will be arguing via phone at today’s hearing,” the office said.

This was the first time an attorney this term will participate remotely, the court’s spokeswoman said. Earlier in the term, Justice Brett Kavanaugh participated remotely from a handful or arguments after testing positive for Covid, and Justice Neil Gorsuch also called in to arguments when he was experiencing a stomach bug.

The court did not give a reason for Sotomayor’s decision, with a court spokeswoman saying only that the liberal justice “is not ill.”

Sotomayor is fully vaccinated and the court announced last week that she had received her booster shot. But she had been the only justice routinely wearing a mask during previous oral arguments, likely due to the fact that she has diabetes.

Friday, for the first time, seven of the justices appeared in the majestic chamber wearing masks, though Gorsuch chose not to.

All of the justices are fully vaccinated, the court has said, and they have?all received booster shots.

A partial ruling from the Supreme Court could come in record-breaking time given the Occupational Safety and Health Administration vaccine and testing mandate takes effect Monday.

CNN legal analyst and University of Texas Law School professor Steve Vladeck notes that the court normally issues opinions on cases it hears oral arguments on at 10 a.m. on pre-scheduled days.

But given the issues at play and the fact these are emergency orders, rulings could come today or over the weekend.

Vladeck noted on Twitter the historic nature of that timing:

A line of question from liberal justices suggested that the arguments that red states are making for blocking the Biden administration’s vaccine mandate could implicate other types of regulations the Department of Health and Human Services implements for patient safety.

Justice Elena Kagan asked Jesus A. Osete, Missouri’s deputy attorney general, whether the HHS secretary could require handwashing or sanitation of equipment.

Justice Stephen Breyer asked about regulations preventing people with diphtheria from entering facilities. When Osete conceded HHS could require it, Breyer zeroed in: “Why can they say the one and not the other,” he said referring to the vaccine mandate.

Osete said that vaccine mandates have historically been in the states’ province.

The states challenging the mandate have argued that in the several weeks the Department of Health and Human Services took to roll out the policy, it could have gone through a notice and comment period that would allow stakeholders to formally weigh in. But the Biden administration says it’d face a challenge if it didn’t follow the law.

“I guess … an ordinary person might say, ‘well, if it’s really important, why don’t you just work faster?’” Justice Elena Kagan asked during today’s oral arguments.

US Principal Deputy Solicitor General Brian Fletcher said that Health and Human Services Secretary Xavier?Becerra?did work extremely fast, but also needed to produce a rule that would satisfy all the legal standards.

Virginia Gov.-elect Glenn Youngkin and Attorney General-elect Jason Miyares announced Friday that the commonwealth will join other Republican-led states in challenging the Biden administration’s Covid-19 vaccine mandates.

The announcement comes on the day the Supreme Court?is hearing?arguments on President Biden’s most aggressive attempts to combat the spread of Covid-19 with vaccine or testing requirements for large businesses and many health care workers.

Youngkin and Miyares said after they are inaugurated on Jan. 15 they “will quickly move to protect Virginians’ freedoms” from the Biden administration’s vaccine mandates.

Justice Sonia Sotomayor jumped into the oral arguments to note one key distinction between the two cases the court is hearing today.

Unlike the Occupational Safety and Health Administration (OSHA) rules requiring vaccines or testing, the vaccine mandate for health care workers has a different federal authority.

For the health care worker mandate, the administration is requiring vaccines for health care staff as condition for facilities to receive federal health funding — i.e. through their participation in Medicare and Medicaid.

That makes this case a Spending Clause case, Sotomayor said, and she asked if the Spending Clause cases give the federal government?more power to define where it wants to spend its money. That difference could be key in terms of how the court eventually rules.

People pour salt on the front plaza of the US Supreme Court on Friday.

Arguments in the second mandate case have started, with US Principal Deputy Solicitor General Brian Fletcher speaking first.

In this case, the Biden administration is arguing the justices should reverse court decisions blocking the US Department of Health and Human Services mandate for certain health care workers, so its lawyer is going first.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by Dec. 6 and the mandate allows for some religious and medical exemptions.

Solicitor General Elizabeth Prelogar makes her case to the court on Friday.

Arguments ended after more than two hours in the challenge of the Biden administration’s vaccine and testing mandate for businesses of over 100 people, and the conservative majority seemed skeptical of the Biden position.

Solicitor General Elizabeth Prelogar wrapped up her arguments with several rounds of questions about the major questions doctrine, with Justices Kavanaugh and Neil Gorsuch signaling their interest in making clear how courts should consider situations where agencies are acting with a policy that doesn’t relate to an explicit?instruction from Congress.

Gorsuch zoomed out big picture, by stressing that courts are not being asked to act like public health experts but rather are being asked to decide whether a federal agency vs. Congress and the states gets to design the public health response.

Kavanaugh, meanwhile, brought up comparisons to cases where the court struck down agency actions under the doctrine.

Notably, Justice Amy Coney Barrett, in finishing up the questioning for Prelogar, pivoted away from discussion of the doctrine, and focused her questions on the procedural issues the challengers raised about how OSHA went about implementing the policy.

Justice Samuel Alito sounded frustrated that he would soon be misconstrued for asking US Solicitor General Elizabeth Prelogar to confirm that vaccines carry some risk.

He framed up his question by stressing that he didn’t want to be misunderstood, that the US Food and Drug Administration had found the vaccines to be safe and that the FDA found that the benefits greatly outweighed the risks.

But he asked Prelogar if it was true that vaccines carry at least some risk of adverse reaction like other types of medication that are still nonetheless highly beneficial.

As he volleyed with Prelogar, she reiterated that FDA has found vaccines are safe and effective.

“I’m making that point. I’m not making that point. I’m not making that point,” Alito groused.

Justice Samuel Alito grilled US Solicitor General Elizabeth Prelogar on the possibility that the court enters a brief stay to give itself a few extra days to consider the case, as currently the administration is planning to being implementing the policy on Jan. 10.

Prelogar said that if the court needed some extra time to consider the case, that was in its prerogative, but she pointed out that the challengers are asking for a much longer hold on enforcement on the policy.

The discussion devolved into a debate involving the other justices over what constitutes a brief delay and the risks to public health in delaying the policy, with Alito knocking the administration for the several weeks the policy has been on hold during the court fight.

Prelogar stressed that the first phase of implementation is just a requirement that unvaccinated workers wear a mask, while the testing requirement for those workers won’t kick in until Feb. 8.

US Solicitor General Elizabeth Prelogar is now arguing in favor of the OSHA mandate.

She noted that the expectation that the OSHA policies would save 6,500 lives and prevent 250,000 hospitalization in the next six months.

She said that exposure to Covid-19 is the biggest threat to worker in OHSA”s history.

“The court should reject the argument that the agency is powerless to address the grave dangers,” she said.

Justice Brett Kavanaugh, in his first go at asking questions Friday, directed Scott Keller, who is representing the National Federation of Independent Business, towards the so-called “major questions doctrine” —that is the idea Congress needed to be more explicit in giving the authority to the agencies to mandate vaccines than it was.

Kavanaugh asked how courts are supposed to assess whether an agency policy is so economically or politically significant that it requires a clear authorization from Congress.

Keller said courts, in this case, could look at the scope of the vaccine mandate and how many workers it affected, as well as how much money it would cost to implement.

Kavanaugh is often seen as a swing vote for the court, but on the legal issues that the mandate cases raise, he has signaled an interest in reining in the executive branch’s ability to implement expansive policies without clear direction from Congress.

On Friday, he noted that the court has only applied the “major questions doctrine” five or six times in the last 40 years.

He asked Keller, “What should we look at to say this [policy] is the kind … that rises to level” of previous cases where agency policies were struck down under the doctrine.

About three in 10 American workers say their employers already require them to be vaccinated against Covid-19, according to recent polling, and nearly two in 10 more say they would like their employer to put in place such a mandate.

A Kaiser Family Foundation poll conducted in November found that 29% of employed Americans said their employer required them to get a Covid-19 vaccine, 69% said their employer did not require that. Another 18% of workers said they wanted their employer to require them, meaning about half overall, 47%, either work under a mandate or would prefer to have one in place.

Those who work for the types of larger companies which would be affected by the Biden administration’s proposed mandate were more likely to say their employer already required vaccines, with 36% among those who work for companies with 100 employees or more saying so.

Another 17% work at such a company without a current vaccine requirement and said they would prefer one, while 41% who work for companies of that size said their company did not put in place a vaccine mandate and they do not want one.

Overall, a majority of all Americans favor requiring vaccination in order to go to work. In the KFF poll from November, 52% said they supported a federal government requirement for vaccines or weekly testing among larger employees, down slightly from 57% who backed that in October.

A CNN poll conducted in early December, shortly after the emergence of the omicron variant, found higher support for a government mandate for larger business, 60% said they supported one that required vaccination or weekly testing for employees of businesses with 100 employees or more.

A CBS News poll also conducted in early December, found 53% in favor of requiring proof of vaccination to go to a workplace, without specifying whether that requirement came from the government or from employers.

A person receives a Covid-19 vaccine in Los Angeles in November.

The?Supreme Court?is taking up challenges to President Biden’s vaccine and testing requirements — as the number of infections soar and 40 million adults in the US are still declining to get vaccinated.

Justices have made mention of the surge in coronavirus cases as a result of the Omicron variant when hearing arguments from both sides today.

Here’s the latest data on vaccination efforts in the US, published?Thursday by the US Centers for Disease Control and Prevention.

With regards to hospitalizations, there are 126,410 people currently hospitalized with Covid-19, according to the Department of Health and Human Services.

Hospitalizations are on the rise, and about 89% of the way to last year’s peak.?There have been only 19 days since the beginning of the pandemic that there have been more than 125,000 people hospitalized with Covid-19 at one time.?

The US is now averaging?602,547 new Covid-19 cases and 1,256 new deaths each day, according to Johns Hopkins University (JHU).

Nearly 834,000 people in the US have died of Covid-19 since the pandemic began, about one in every 400 Americans, according to JHU data. About one in every six people has tested positive.?

Note: CDC data on Covid-19 vaccinations are estimates. The agency notes that data on people who are fully vaccinated and those with a booster dose may be underestimated, while data on people with at least one dose may be overestimated.?

Justice Sonia Sotomayor had some of the sharpest questions for Scott Keller, who is representing the National Federation of Independent Business.

She noted that some states are banning private employers from implementing their own vaccine or mask mandates and said that “Congress has decided to give OSHA the power to regulate workplace safety.”

Why shouldn’t the federal government have a national rule to protect workers, Sotomayor asked.

Later in her questioning, Keller tried to distinguish the vaccine-or-mask rules from OSHA’s ability to regulate that workplaces require masks when machinery is emitting dangerous sparks.”

“Why is a human being not like a machine if it’s spewing bloodborne viruses” when it comes to OSHA’s authority, Sotomayor pushed back.

Chief Justice John Roberts pivoted off of Justice Elena Kagan’s points about vaccines and testing being the best approach for addressing the pandemic in the workplace.

“Why wouldn’t?OSHA?have the authority?to do the best approach possible to address what — I guess you would agree — is a special workplace problem?” Roberts asked during the Supreme Court’s oral arguments.

But in a worrying sign for the Biden administration, Roberts then expressed some skepticism of the administration’s broader approach in rolling vaccine mandates across several agencies.

Roberts referenced the arguments planned later Friday for a separate health care worker mandate being implemented by the US Department of Health and Human Services: “It seems to me that the government is trying to work across the waterfront and is just going agency by agency,” Roberts told US Solicitor General Elizabeth Prelogar.

“I understand the idea that agencies are more expert than Congress. I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before,” Roberts said.

More context: Roberts is a key swing vote the Biden administration will likely need to keep the mandate in force. But the administration will also need to convince a second conservative justice to join the three liberal justices likely to vote in favor of the mandate as well.

Justice Elena Kagan interrupted Scott Keller, who is representing the National Federation of Independent Business, to ask why vaccines shouldn’t be mandated.

“Why isn’t this necessary to evade a grave risk?” Kagan asked, referencing the language in the relevant OSHA statute.

Kagan noted that people are getting sick and dying every day because of the pandemic.

“Whatever necessary means, whatever grave means: why isn’t this necessary and grave?” she added.

The justice called the current situation “extraordinary circumstance, a circumstance this country has never faced before.”

Kagan later stressed that the challengers are asking courts to substitute their judgments for that of agency experts.

She argued that agencies — through the President — do face political accountability, while courts are unelected and don’t have any epidemiological expertise.?

Scott Keller, who is representing the National Federation of Independent Business, started out today’s oral arguments by calling the Occupational Safety and Health Administration (OSHA) vaccine and testing requirements for businesses as an overreach, noting the US Postal Service is already asking for a delay.

Earlier this week, USPS asked the Labor Department for a temporary waiver.

The vaccine-or-test mandate, Deputy Postmaster General Douglas A. Tulino wrote, “is likely to result in the loss of many employees — either by employees leaving or being disciplined.”

Chief Justice John Roberts was skeptical of that argument: “Just because the Post Office can’t do it efficiently doesn’t mean private industry can’t.”

The?Supreme Court?is taking up challenges to President Joe Biden’s most aggressive attempts so far to combat the spread of Covid-19 — vaccine or testing requirements for large businesses and many health care workers — as the number of infections soar and 40 million adults in the US are still declining to get vaccinated.

Although the justices have?been receptive to?past attempts by states?or universities to mandate vaccines, the new disputes center on federal requirements that raise different legal questions.

Two sets of rules were issued in November. The first would impact some 80 million people and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations.

Critics of the requirements, including a coalition of business groups and Republican-led states, say the Biden administration exceeded its authority in issuing such sweeping mandates that could lead to massive staff shortages and billions of dollars in compliance costs. The administration, on the other hand focuses on the impact of the virus that has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.

Oral arguments are expected to last more than two hours and will be available on a live audio stream, although the chamber itself is closed except for lawyers, court personnel and journalists due to safety protocols aimed at containing the spread of the virus. The court announced this week that all nine of the vaccinated justices have received their booster shots.

Read more about today’s oral arguments here.

In its filings, the Biden administration is touting evidence it says shows that imposing?vaccine?requirements won’t cause the disruptions that administration’s opponents say they will.

The Republican-led states challenging the administration’s health care worker mandate predict mass resignations if the requirement is implemented, with a?filing last week noting?that?“over 30% of healthcare workers remain unvaccinated” in most of the states that joined Louisiana in suing over the requirement.

The Justice Department expressed skepticism?in a Monday filing with the Supreme Court?that all those who are unvaccinated would quick rather than comply with a?vaccine?requirement.

The Department pointed to news reports showing that workers aren’t following through on threats to quit if they’re required to be vaccinated, including in a rural Alabama hospital that lost only six of its 260 employees due to a mandate.

In the separate case around the OSHA testing-or-vaccine?rules, the department also cited data from the experience that United Airlines and Tysons Food had in imposing their?vaccine?mandates, with the companies saying respectively that 99.7% and 96% of their workplaces complied with their requirements.?

The White House is defending its vaccine orders ahead of Supreme Court oral arguments, scheduled for Friday, on the constitutionality of two mandates the Biden administration says “are legally sound and will protect the health of Americans across the country.”

The court is hearing arguments on Biden’s vaccine mandates for large employers and certain health care workers.

Biden’s Department of Justice will argue the mandate for large employers?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,” while the rule affecting health care workers “will save hundreds or even thousands of lives each month.”

The arguments were scheduled after Supreme Court Justices Samuel Alito and Brett Kavanaugh were asked to intervene in lower court disputes over the mandates. Kavanaugh had been asked by challengers to the employer mandate to reverse an appeals court ruling that said the Biden administration could enforce its vaccine-or-testing rules for large companies.

Kavanuagh and Alito had separately been asked by the Justice Department to reverse appeals court orders against the health care worker mandate, which applies to health care staff at providers that participate in Medicare and Medicaid. The appeals court orders have left the mandate frozen in about half the country.

Supreme Court Justice Sonia Sotomayor takes part in a group photo session in April.

Justice Sonia?Sotomayor?will not take the bench today to hear challenges to the Biden administration’s testing or vaccine requirements, instead electing to participate in oral arguments remotely from her chambers.

A Supreme Court spokesperson says “she is not ill.”?

Sotomayor?is fully vaccinated, and the court announced last week that she received her booster shot. But she has worn a mask during previous arguments, likely due to the fact that she suffers from diabetes.

In addition, two lawyers – Ohio Solicitor General Benjamin M. Flowers and Louisiana Solicitor General Elizabeth Murrill – will participate remotely today by telephone.

A court spokesperson declined to say whether the attorneys were ill. The court’s website mandates that arguing attorneys planning to attend argument must take a PCR Covid-19 test on the?morning before argument.

Earlier in the term, Justice Brett Kavanaugh participated remotely from a handful or arguments after testing positive for Covid-19.?

All of the justices are fully vaccinated, according to the court, and they have all received booster shots.

At stake in Friday’s cases is not just these particular?Biden administration vaccine?policies, but the federal government’s — and particularly the executive branch’s — ability to respond to public health issues in general.?

A core holding in most of the lower court rulings against the mandates is that Congress must give explicit authority to agencies to impose?vaccine?requirements — and the statutes the Biden administration is using to justify the moves weren’t explicit enough.?

But some states challenging the health care worker mandate are going even further and have argued to the Supreme Court that even if Congress had passed a law implementing a version of that mandate, it would be unconstitutional. The mandate requires that certain health care workers be vaccinated as a condition of their facilities participating in Medicare and Medicaid.?

A coalition of states led by Louisiana said that even if Congress had given the US Department of Health and Human Services an unambiguous instruction to impose the mandate, it would be a violation of the Constitution’s Spending Clause.?

Other states that are challenging the mandate don’t go that?far, but they say that because the mandate is close to the limits of what’s constitutional, the executive branch can’t implement it unilaterally.?

A man walks past the US Supreme Court on Friday morning.

The very fact that the Supreme Court is hearing these two disputes on such an accelerated time schedule highlights how seriously the justices are taking challenges to the Biden administration’s latest attempt to combat Covid-19.

Here’s your guide to today’s oral arguments:

What is being discussed: At issue are two set of rules issued in November. The first would impact some 80 million individuals and requires large employers to mandate that their employees either get vaccinated or submit to weekly testing. A second regulation requires certain health care employees who work for facilities that participate in Medicare or Medicaid programs to obtain vaccinations.?

What both sides are saying: Critics of the requirements, including a coalition of business groups and Republican-led states, say the government agencies exceeded their authority in issuing such sweeping mandates that could lead to massive staff shortages and billions of dollars in compliance costs. The Biden administration, on the other hand, focuses on the impact of the virus that has already killed some 800,000 Americans, closed businesses and kept children out of classrooms.??

The justices to watch: Both disputes trigger legal questions that have often divided the justices. The dispute boils down to whether a federal agency—that is not directly accountable to the public—has broad authority to issue rules that impact millions of Americans. Conservatives, including the likes of two of former President Trump’s nominees, Brett Kavanaugh and Neil Gorsuch, have expressed reservations of agencies acting in such a way without crystal clear authorization from Congress. Look for the justices to ask a lot about the agencies’ statutory authority. They may even raise constitutional questions concerning separation of powers.?Keep in mind, the justices have so far tolerated vaccine?mandates issued by the states,?but Friday’s cases concern federal mandates and raise different legal questions.?

The first case: First up will be veteran litigator?Scott A. Keller. He is in private practice now but he served for three years as Texas’ solicitor general and is a former law clerk to retired Justice Anthony Kennedy.?He is representing a coalition of business groups in?National Federation of Independent Business et al. v. Department of Labor.?He’ll tell the court that OSHA does not have the authority to put in place a?vaccine?or testing regime that will cover two-thirds of all private-sector workers. He stresses how the rule will impose?substantial compliance costs on businesses that will be faced with incurring the cost of testing for millions of employees who refuse to vaccinate.???

Next up will be?Ohio’s Solicitor General, Benjamin M. Flowers, representing GOP-led states.?Flowers served as a law clerk for the late Justice Antonin Scalia. Look for him to stress that the federal mandate is intruding on a state’s authority to enact its own vaccination and testing requirements.?

Biden’s newly confirmed?Solicitor General Elizabeth Prelogar — who has already this term been tasked with arguing a major abortion case — will stand up for 30 minutes and argue the government’s position.??

Prelogar sees the?vaccine?mandate differently, stressing the pandemic’s devastating impact.?She may allude to the fact that so far 40 million Americans are choosing not to vaccinate which is wreaking havoc on the country and in the workplace. She will concentrate on the agency’s authority to act on an emergency basis to protect employees if they are exposed to “grave danger.”?

The second case: The second rule concerns?a?vaccine?policy rolled out in November by the US Department of Health and Human Services’ Centers for Medicare & Medicaid Services, which sought to require the Covid-19?vaccine?for certain health care workers at hospitals, nursing homes and other facilities?that participate in Medicare and Medicaid programs.

According to government estimates, the mandate regulates more than 10.3 million health care workers in the United States. Covered staff were originally required to get the first dose by Dec. 6?and the mandate allows for some religious and medical exemptions.??

Many believe the second case concerning a mandate that impacts fewer individuals might gain more traction with the justices. Between the two, the thinking goes, health care providers that participate in Medicaid and Medicare programs have long been subject to conditions adopted by the government.?

Because two lower courts blocked the mandate from going into effect in about half the country, the government lawyer, Principal Deputy Solicitor General Brian H. Fletcher, will argue first — urging the justices to allow it to go into effect nationwide. For a time, Fletcher served as the government’s top lawyer at the Supreme Court while Prelogar’s confirmation was pending.?

Like Prelogar, Fletcher will lean on the impact of the pandemic on the country. He will say that the Secretary of Health and Human Services has authority to protect the health and safety of Medicare and Medicaid patents many of whom are particularly vulnerable due to age and disability.??

Two different coalitions of Republican-led states are challenging the CMS mandate.?

Jesus A. Osete, Missouri’s deputy attorney general, calls?the mandate “sweeping an unprecedented” in court papers and he said it would create a crisis in health care facilities in rural America because it would force “millions of workers to choose between losing their jobs or complying with an unlawful federal mandate.”??

Separately,?Elizabeth Murrill, Louisiana’s solicitor general, representing a different set of states, will argue that the?mandate is also unconstitutional. She is expected to say that Congress can’t simply delegate the authority to a federal agency to require?vaccines for over 10 million health care workers without a clear statement of intent.??