January 7, 2022 9:25 AM EST

The Supreme Court will hear two sets of cases Friday morning, both of which challenge the Biden Administration’s plans to require millions of Americans to be vaccinated against COVID-19. The cases amount to a test of how the justices view the federal government’s power to create policy in uncertain times.

The high court, which had been slated to return from break on Jan. 10, scheduled oral arguments for this week in response to emergency applications on two policies. The first is the government’s vaccine-or-testing requirement for large employers. The second is a federal vaccine mandate that applies to health care workers at facilities that receive federal money.

This is the third time this term the Court has moved cases off the so-called “shadow docket,” where the justices typically rule through a short order and without a full briefing. The Court has been criticized in recent years for deciding high profile cases in this manner. The Court said Dec. 22 it would fast-track these cases and give them an expedited oral argument hearing.

The Court has a mixed record on cases related to the pandemic. It has allowed states to impose vaccine mandates, but also supported some religious objections to pandemic restrictions. These cases are different—and have much higher stakes. They focus on whether Congress has authorized federal agencies to create vaccination rules. The challengers contend that the executive branch has overstepped its authority. When the Court last year examined another Biden administration attempt to respond to the pandemic—that time through a moratorium on evictions—the justices rejected the program, saying the Centers for Disease Control and Prevention did not have the power to implement it.

“It’s not just about COVID. It’s not even just about public health. It’s about basic ideas of how government is going to be allowed to operate,” says Lindsay Wiley, a health law professor at UCLA School of Law. “What’s at stake in this decision … is the ability of the federal administration, now and in the future, to rise to new challenges or implement new solutions that Congress couldn’t have foreseen at the time when it drafted the authorizing statute for the agency.”

Why the federal government has less power than states

Private companies, universities, states and local governments have all issued vaccine mandates over the past year. While many of these mandates have been challenged in lower courts, judges for the most part have supported the authority of these institutions to require vaccination.

“Courts are going to allow states more freedom to regulate public health, because under our Constitution they don’t need to have that specific power to act,” says Dorit Reiss, a law professor at the University of California Hastings College of Law who specializes in vaccine policy. “States have whatever power is not expressly taken from them. But the federal government only has a power expressly given to it.”

This is where the Biden Administration has run into trouble. While many public health and legal scholars say that the Administration is on solid ground, its requirements have been challenged by business interests, religious groups and Republican-led states arguing that the federal government has overreached by issuing policies that were not explicitly authorized by Congress.

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The concept that federal agencies need Congressional approval to create significant regulations is known as the “major questions doctrine.” In previous Supreme Court decisions, justices have used this idea to limit agencies’ power when the agency takes an action of major “economic and political significance.”

But experts agree the doctrine is not very well defined. The Court has not explained what counts as “economic and political significance” or how clear Congress’ instructions must be for a federal agency to be acting appropriately. This leaves lots of room for the Supreme Court’s 6-3 conservative majority to interpret the doctrine as they see fit.

Lawrence Gostin, a professor of global health law at Georgetown University, said he thinks the major questions doctrine is “bogus.” “The courts,” he says, “have long permitted regulatory authorities to set standards that have far reaching political and economic consequences.”

The vaccine requirements in question

While both cases are facing similar challenges, the two vaccine requirements rest on different authorities. Gostin and most other experts say they think that the rule for employers, issued by the Labor Department’s Occupational Safety and Health Administration (OSHA) in November, will be more at risk from the Court than the requirement for health care workers.

OSHA’s rule say companies with more than 100 employees must require workers to get COVID-19 vaccines or undergo weekly testing. The regulation, which would affect 84 million workers, makes exceptions for people who work exclusively outdoors or those who work at home.

Under normal circumstances, implementing a regulation of this type could take years. But the Occupational Safety and Health Act of 1970 allows OSHA to issue an “emergency temporary standard” to protect workplace safety if the agency can show that employees are exposed to “grave danger” and that the rule is “necessary.” OSHA does not have a very successful track record with this kind of rule. It has issued 10 such emergency temporary standards since the agency was created, and many have been challenged in court and struck down.

Though COVID-19 has killed more than 830,000 Americans, Wiley notes the agency will have to prove the virus poses a “grave danger” specifically in the workplace and not just in Americans’ everyday lives. To meet the “necessary” requirement, OSHA will need to show that other measures such as mask wearing and social distancing are not enough to protect workers.

Soon after OSHA issued its rule, a three-judge panel of the Fifth Circuit Court of Appeals moved quickly to block the regulation. But then the many challenges were consolidated and sent to the Sixth Circuit Court of Appeals, where a split panel ruled in favor of the regulations. The challengers asked the Supreme Court to weigh in, reiterating their argument that OSHA does not have the authority to impose the emergency rule.

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The other cases revolve around the Centers for Medicare and Medicaid Services (CMS) vaccine mandate, which applies to the more than 17 million health care workers at facilities paid by Medicare and Medicaid. It includes exemptions for those with medical and religious reasons.

This, too, was partially blocked by federal judges after a variety of groups and conservative states brought challenges against the rule. Judges in Missouri and Louisiana issued rulings that were upheld by the Eighth Circuit Court of Appeals and the Fifth Circuit Court of Appeals, halting the mandate in about half of the states.

When the Biden administration appealed the health care worker mandate’s loss up to the Supreme Court, Solicitor General Elizabeth Prelogar argued that the vaccine requirement was backed by “both science and common sense.” “Requiring healthcare workers at facilities participating in Medicare and Medicaid to be vaccinated protects the health and safety of patients at those facilities by reducing their risk of contracting the virus that causes COVID-19,” she wrote.

Other experts said the CMS move has plenty of precedent. The agency often requires facilities to meet cleanliness standards or collect information about flu vaccinations, for example. “Historically, when the federal government is funding things, it can attach conditions to them,” Reiss says. “The pushback is a little strange, and it’s concerning. It’s basically saying the unelected judges should have more say on how the government spends its money than the bureaucrats.”

An increase in judicial power

The justices are expected to rule quickly on both cases. The Biden Administration has said it will start enforcing the OSHA rules on Jan. 10, while businesses will have until Feb. 9 to get their testing programs up and running. As the cases play out in the courts, employers have been left with uncertainty, and some have said they are worried about losing workers amid ongoing staff shortages around the country.

If the Court does rule against one or both of the vaccination requirements, experts say the decisions could amount to a transfer of power from elected officials and their staffs to the courts.

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“As a deregulatory strategy, it’s really effective. President Trump and Mitch McConnell have really reshaped the federal judiciary at this point. And so these very conservative judges throughout the federal judiciary now are pushing a deregulatory agenda at the same time that the Congress is just so tied up in knots,” says Wiley. “If Congress can’t act, then you get the judges to step in and say, unless Congress gives step by step instructions to an agency, the agency can’t act.”

This could have huge implications for the shape of the pandemic in the short term, and for the federal government over the long-term. Without the OSHA vaccination rule, private employers that do not want to impose a vaccine requirement will not have to do so. But even employers who want their employees to be vaccinated may not be able to require that. More than half of states now have laws limiting the ability of certain entities to issue vaccine mandates, and at least 10 cover employers imposing vaccine mandates in the workplace, according to Reiss.

Beyond COVID-19, many other areas could be impacted, too. “The implications of an adverse result would be catastrophic for health and safety regulation, including public health, occupational health and safety, and for the environment,” said Gostin. “These two cases before the Supreme Court have critical importance to the future of America.”

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Write to Abigail Abrams at [email protected].

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