WASHINGTON (Reuters) — The U.S. Supreme Court, which has restricted its own operations during the Covid-19 pandemic, is preparing to decide whether to block President Joe Biden's vaccine mandates for large businesses and healthcare workers in a test of presidential powers to address an unyielding public health crisis.
The court will hear in-person arguments on Friday on emergency requests in two separate cases by challengers including business groups, religious entities and various Republican-led U.S. states for orders blocking the vaccine requirements, with rulings expected in short order. The challengers maintain that Biden and his administration have overstepped their authority.
The court's 6-3 conservative majority in the past has shown skepticism toward sweeping actions by federal agencies.
Decisions against Biden could hamstring his ability to take broad action to tackle a pandemic that already has claimed the lives of roughly 830,000 Americans, with Covid-19 cases driven by the coronavirus Omicron variant soaring nationally.
The nine justices have spent the bulk of the pandemic working remotely. When the court returned to in-person oral arguments in October for the first time since the early stages of the pandemic, the few people allowed to attend were required to wear masks and maintain social distancing. Among the justices, only Sonia Sotomayor wore a mask in the courtroom during recent arguments.
Members of the public continue to be barred from entering the court building, as they have been since March 2020. Lawyers and journalists are required to take Covid-19 tests to gain entry, though the court has not required proof of vaccination.
A court representative said all nine justices are fully vaccinated and have received booster doses.
The justices, sometimes divided, have rejected several religious-based challenges to state vaccine requirements. Friday's cases are the first tests of the federal government's authority to issue its own vaccine mandates.
In other pandemic-related cases, the court has backed religious challenges to certain restrictions and ended the federal government's residential housing eviction moratorium, originally imposed under former President Donald Trump.
The Cincinnati-based 6th U.S. Circuit Court of Appeals on Dec. 17 lifted an injunction issued by a lower court that had blocked the rule requiring workers at businesses with at least 100 employees to be vaccinated or be tested weekly. That mandate, part of Biden's drive to increase the U.S. vaccination rate, was issued by the Occupational Safety and Health Administration and affects around 80 million workers nationwide.
The healthcare worker mandate applies to a majority of the estimated 10.3 million Americans who work in healthcare facilities that receive money under the Medicaid and Medicare government programs. Biden's administration is asking the Supreme Court to lift orders by federal judges in Missouri and Louisiana blocking the policy in half the 50 U.S. states while litigation on the legal merits of the mandate continues.
In both cases, the challengers argued that the federal government overstepped its authority by issuing requirements that were not specifically authorized by Congress, citing Supreme Court rulings that limited federal agency power over tobacco and greenhouse gas regulations. Both vaccine mandates are of sufficient economic and political significance to require a "clear statement" from Congress, according to the challengers.
Deepak Gupta, a lawyer who filed briefs supporting the mandates, said this argument raised by the challengers is problematic.
"It allows unelected judges to decide there are certain questions they think are significant enough that they require a clear statement on that specific issue," Gupta said.
Some legal experts suspect the healthcare worker mandate has a better chance of surviving Supreme Court review because the regulation covers just facilities that decide to accept patients covered by Medicaid and Medicare.
"This is only a condition on participation in a federal program, not a direct regulation. Second, and pragmatically, the justices may hesitate before they enjoin a vaccine mandate for healthcare workers," said Sean Marotta, a lawyer representing the American Hospital Association, a trade group for healthcare providers that is not involved in the litigation.
The clock is ticking for the justices.
Biden's administration has said it will start requiring compliance with the healthcare worker policy next Monday, though companies would have until Feb. 9 to set up testing programs. In the states where this regulation has not been blocked, workers are required to be fully vaccinated by Feb. 28.
Employers are currently unsure how to proceed, with some concerned about losing staff in a tight labor market if they impose vaccine or testing requirements, said Todd Logsdon, a lawyer based in Louisville, Kentucky who represents companies on workplace safety.
"The quicker they can issue the decision the better," Logsdon said of the Supreme Court.