What to watch for as the Supreme Court reviews challenges to Biden’s federal vaccine mandates on Friday

• The Biden administration’s federal vaccine mandates are heading to the Supreme Court on Friday.
• Justices will decide whether the mandates can proceed or if they’ll be blocked amid ongoing legal battles.
• A vaccine law expert told Insider what he’ll be carefully watching for as the hearings commence. 

As the pandemic approaches its two-year mark, the Supreme Court on Friday is set to review emergency challenges to two federal vaccine mandates announced by the Biden administration last year.

The first measure being considered is an Occupational Safety and Health Administration mandate targeting private companies with more than 100 workers that requires employees to be vaccinated or tested regularly and wear masks. The second measure is a Centers for Medicare and Medicaid Services vaccine mandate that requires inoculations for all healthcare workers employed by operations that receive specific federal funding.

“They are very different issues,” Brian Dean Abramson, an adjunct professor of vaccine law at Florida International University and author of “Vaccine, Vaccination, and Immunization Law” told Insider. “But it’s actually common for the Supreme Court to bundle issues that touch on common areas of law.”

When President Joe Biden announced the measures in November, he said the mandates, which affect nearly 100 million American workers, were meant to increase inoculation rates and end the pandemic “for good.” But several legal challenges have popped up along the way. 

Litigants in the cases include several businesses, religious groups, and GOP-led states. The mandates come to the Supreme Court on Friday following a slew of rulings, and overturned rulings among divided district court justices in recent months. 

As the top court commences on Friday, the justices are not expected to rule on the constitutionality of federal vaccine mandates. Instead, they will review whether current stays on the mandates issued by lower level courts should be upheld or dismissed. The Supreme Court’s decision will determine whether the mandates will be allowed to proceed or if they will be blocked as legal battles wage on.

According to Abramson, it’s unusual for the top court to hear oral arguments on matters of staying an issue, the likes of which are usually relegated to their “shadow docket.”

“The fact that there is a hearing on whether to stay means multiple justices want to hear this out,” Abramson said. 

Ahead of the hearings, Abramson told Insider what he’ll be carefully watching for. 

Narrow vs. Broad Decision

A big question surrounding Friday’s hearings is whether the justices are looking to make a narrow decision — a ruling that would be applied only to these particular mandates — or a broad decision — one that could set a new legal precedent moving forward. 

Paying attention to their lines of questioning could offer hints about which way justices are leaning, Abramson said.

If they spend a good amount of time examining the procedural aspects of the mandates, it could indicate that the justices are more interested in issuing a narrow decision applied only to these specific mandates.

Questions are likely to arise around the Emergency Temporary Statute process under which OSHA issued its mandate. Typically the agency is required to follow several steps when making a new rule, including offering time for public notice, comment, and proceedings. But the agency’s Emergency Temporary Statute allows OSHA to skip the normal process in favor of establishing a rapid, temporary rule in the midst of a public emergency.

The primary question surrounding the OSHA mandate is whether or not the pandemic is a dire enough emergency to allow the normal process to be skipped, according to Abramson.

The Centers for Medicare and Medicaid Services mandate is slightly different, in that the agency doesn’t have its own emergency process to create a new rule, but instead, has applied its general authority to protect patients and healthcare workers under what’s known as an “interim final rule,” which is a statute that is meant to eventually become permanent, Abramson said.

On the other hand, if justices focus their questions on issues of constitutionality and the limits of federal power, they may be more interested in ruling broadly and looking toward establishing future “ultimate law” on a hypothetical federal mandate down the line. 

Temporary or Permanent Mandates?

As the pandemic enters another year, timelines in place for COVID-19 procedures like masks and lockdowns have become more and more nebulous. The emergency measures were put in place to help end the pandemic quickly and effectively, but were understood to be temporary measures when first implemented. 

As the pandemic rages on, justices are now tasked with ruling on whether governmental efforts to combat the pandemic will give way to permanent changes, and according to Abramson, some justices in courts across the country are beginning to express concerns about those uncertain timelines. 

The 6-month OSHA vaccine mandate, for example, is set to expire in April, but it’s unclear whether the agency plans to re-up the requirement or let it expire.

While Friday’s hearings are primarily focused on the stays, Abramson said some lower courts have started to examine questions of constitutionality related to federal mandates, even as they deliberate on the smaller issue of stays. 

It’s unclear whether the Supreme Court will do the same.

“They might want to address whether this action is proper partly on…whether this is perceived to be a permanent change or an emergency measure to temporary situation,” Abramson said.

What comes after the SCOTUS ruling?

There are at least four possible outcomes from Friday’s hearings, and the two mandates, though similar in nature, are nuanced enough that different results for each could be possible, Abramson said. 

The unlikeliest of the four options, according to Abramson, is that the court rules that vaccine mandates are flatly unconstitutional. If that happens, vaccine mandates are probably done for, though they would make one more appearance at the Supreme Court for final trial ruling following the conclusion of ongoing challenges currently taking place in the lower courts.

Conversely, the stays could be dismissed completely and the temporary mandates upheld. If this happens, the Biden administration has said it will start enforcing compliance with the healthcare mandate next week. In states where the requirement has not been blocked, vaccination for workers is required by February 28. The OSHA mandate was set to take effect earlier this month, but the agency pushed back the date because of the pending litigation. 

But even if the stays are dismissed completely, there will still be district and appellate court proceedings regarding the mandates, and businesses that disagree with or find certain aspects of the statute challenging, could still bring forth individual challenges, Abramson said. 

Another possibility is that the stays are upheld, but on a narrow, procedural basis. The mandates would be blocked in this case, but OSHA could theoretically promulgate a new rule under its normal rule-making process to mandate vaccines before April. Historically, however, the OSHA rulemaking process often takes years to complete.

Similarly, if the stays are upheld because the court finds that Congress didn’t have the power to give agencies the authority to mandate vaccines, Congress could feasibly produce a quick piece of legislation granting themselves that power, Abramson said.

The fourth potential outcome would be a partial stay of some sort, which could mean the court rules that the mandates can’t be imposed with respect to certain businesses or situations. A partial, narrow ruling would likely lead to logistical changes in the way the standards are carried out moving forward, Abramson said.

Abramson’s predictions

It’s unclear how long the court might take to come to a ruling, though Abramson doubted it would stretch on too long.

The expert told Insider that he expects there to be at least three opinions out of the Supreme Court hearings: a majority determination, a dissenting opinion, and conceivably differing majority or dissenting opinions as well. 

“I think it’s kind of three judges in the middle who will make the difference on how broadly or narrowly these mandates are approached, and how pragmatic the decision is,” he said, citing Justices John Roberts, Amy Coney Barrett, and Brett Kavanaugh as possible wildcards.

“If I had to flip a coin on it, I would think there will be some way in which these mandates are allowed to go forward,” he added. “But I wouldn’t be stunned if the stays were continued either.”