Today is a day that most opponents of Joe Biden’s federal vaccine mandates have been waiting for. The Supreme Court justices will hear arguments today on an emergency basis challenging both the large employer mandate and the federal mandate for healthcare workers. The strategies being offered by the plaintiffs and the White House couldn’t be more different. Attorneys for the states challenging the mandates and the conservative groups supporting them will argue that the mandates represent a tremendous overreach by the federal government in defiance of states’ rights while acknowledging that it is proper for the President to encourage people to be vaccinated and provide relevant healthcare information to the public. The White House will largely ignore that aspect of the case and argue that the mandates will save hundreds or thousands of lives and that the state of emergency caused by the pandemic justifies the exercise of such unilateral power. The track record of the court on related issues over the past year makes it less than clear which way the justices will rule. (Associated Press)
The Supreme Court is taking up two major Biden administration efforts to bump up the nation’s vaccination rate against COVID-19 at a time of spiking coronavirus cases because of the omicron variant.
The justices on the conservative-oriented court are hearing arguments Friday about whether to allow the administration to enforce a vaccine-or-testing requirement that applies to large employers and a separate vaccine mandate for most health care workers. The arguments were expected to last at least two hours.
Legal challenges to the policies from Republican-led states and business groups are in their early stages, but the outcome at the high court probably will determine the fate of vaccine requirements affecting more than 80 million people.
The court has an unfortunate history dating back to the 1800s of granting more and more power to the federal executive branch at the expense of the legislature and the states. But there are still limits that the court will not allow to be exceeded, or at least we can hope there are. The editorial board of the Wall Street Journal touched on this subject yesterday. They predicted that “some Justices will be tempted to defer to the executive given the pandemic emergency. But Presidents have been increasingly eager to find emergencies whenever they are politically convenient.”
This is something we’ve been raising a red flag over since the mandates first started rolling out at the state and municipal levels. We’ve seen what happens when governors get a taste of that sort of unbridled power, particularly in New York when Andrew Cuomo was still in charge and in California under Gavin Newsom. Individual large cities, primarily the ones run by Democrats, have seen the same things taking place with their mayors. Using a newly emerging virus as an excuse to do pretty much whatever they want, with their respective legislatures seemingly happy to hand over the keys has led to predictably depressing results.
If the highest court in the land goes along with this it will send a very bad message to future, autocratically-inclined chief executives. Heritage Foundation President Kevin Roberts set forth this argument at the Washington Times.
“No constitutional or legal authority is given to the federal government to issue this type of mandate, and the Supreme Court should reiterate this fact quickly and without ambiguity,” Heritage Foundation President Kevin Roberts said. “When Heritage filed our lawsuit against this unconstitutional mandate, we expected the fight would ultimately end up at the U.S. Supreme Court. That day is here. This is a pivotal moment for our judicial system. The outcome of this case will have consequences far beyond a mandate over the COVID vaccine.”
The outcome will come down to how much weight the justices give to the states’ rights angle and how they view the extent of emergency powers. The court has turned back challenges to state and municipal mandates in the past, showing that they don’t dismiss the idea of vaccine or mask mandates entirely. But they also recently shot down an extension to the federal moratorium on evictions, while allowing state and municipal moratoria to move forward.
In the end, analysts seem to agree that the decision will come down to the views of Chief Justice John Roberts, along with Brett Kavanaugh and Amy Coney Barrett. If two of them can be convinced to bend a knee to the executive branch over the states, the three liberal justices will undoubtedly side with them. If not, we may be seeing an end to all of the federal COVID mandates with the exception of the one for the military. As Commander in Chief, the President will likely still be allowed to issue mandates to the troops.