The US Supreme Court announced that it would accept expedited appeals of two of Joe Biden’s “vaccine mandate” cases. One of the mandates uses a flimsy Occupational Safety and Health Administration order, we shouldn’t dignify it by calling it a “rule,” that companies with over 100 employees must impose a vaccine mandate. The OSHA mandate had a couple of dozen parties spread across the nation. All those cases have been consolidated under the aegis of the Sixth Circuit (6th Circuit Delivers Another Smackdown to Biden Admin on OSHA Mandate).
The second case stems from an order by the Center for Medicare and Medicaid Services that all health care workers in facilities receiving Medicare or Medicaid payments must have the vaccine. Challenges to this mandate have come from Missouri (In the Ongoing Mask Mandate Battle, Missouri AG Eric Schmitt Makes the Case for Freedom) and Louisiana, resulting in injunctions against its enforcement by both the Fifth and the Eighth Circuits.
Given the manhandling that the OSHA mandate has received just about everywhere it has been heard, it was a little bit of a shock when a Sixth Circuit panel consisting of one Obama judge, one George W. Bush judge, and one Trump judge ruled 2-1 to remove the nationwide injunction and let the OSHA mandate take effect (see Joe Biden Wins Big on His Vaccine Mandate for Businesses).
When the Sixth Circuit agreed with the government last week and lifted the nationwide injunctions, it seemed like we were in for a long slog with the OSHA mandate coming into force before it could be fully litigated.
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Last night, however, the Supreme Court stepped in and agreed to take the OSHA case and the CMS cases simultaneously. It ordered all parties to file briefs no later than December 30 and set January 7 for oral arguments.
Unlike state governments, the federal government doesn’t even have a colorable claim to the authority it is asserting via the OSHA or CMS mandates. There is simply no legal or factual basis to justify it. I also think that when the Supreme Court gets around to hearing state-level cases, the Jacobson vs. Massachusetts precedent, a precedent that seems pretty damned disreputable when you look at its history (see Did You Ever Notice How the Same Supreme Court Precedent Used to Rationalize Vaccine Mandates Also Justified Involuntary Sterilization?), will be struck down.
On the whole, this is following a very similar pattern to that of the Texas Heartbeat Law (Supreme Court Humiliates Biden, Refuses to Stop Texas Heartbeat Law, and Gorsuch and the Wise Latina Have a Public Spat) in accepting a case for an expedited hearing. I see that as a positive sign and as good news. When the federal government claimed it had plenary authority to prevent evictions, the Supreme Court disabused them of that idea (see The Renewed CDC Eviction Moratorium Is an Unlawful Powerplay and Fundamentally Damages More Than Just the Rule of Law and The Supreme Court Rules on the Eviction Moratorium and Sends the Biden Administration Into Further Collapse). I’m fairly confident that a majority on the court will either return the injunction pending further action by the Sixth Circuit or simply strike the laws down.