The fate of the coronavirus pandemic in America and the prospect of a return to something resembling normal life are on the line Friday, when the United States Supreme Court will hear challenges to President Biden’s two signature vaccine mandates.
It’s a proceeding that may prove the most consequential day for American public health in a century. And the potential for fresh pandemic disaster is real—and worse than you think.
It was 1905 when the U.S. Supreme Court upheld a smallpox vaccination mandate. Ever since, health officials in America have exercised extraordinary powers. Think food safety, sanitary inspections, and childhood vaccinations. During the coronavirus pandemic, mayors even locked down entire cities.
And along the way, the Supreme Court—yes, even this conservative Supreme Court—has upheld vaccine mandates, including those without religious exemptions.
But those recent cases have applied only to cities and states, not the federal government. Now, a deeply conservative majority has the power to render Biden’s coronavirus strategy—past, present, and future—largely toothless, and effectively cause tens of thousands of preventable deaths.
The Supreme Court will hear two companion cases Friday: the vaccinate-or-test mandate for large businesses imposed by Biden’s Occupational Safety and Health Administration (OSHA) and a separate Centers for Medicare and Medicaid Services (CMS) vaccine mandate for workers at health facilities.
Americans, of course, can be exposed to the coronavirus anywhere—especially when a super-contagious new variant continues to spread. But not all of us spend eight hours, five days a week (or more) indoors with a crowd of strangers. That poses a major workplace risk.
Likewise, health facilities look after the most vulnerable people in our society. As we have seen since the very start of this pandemic in early 2020, if hospitals and nursing homes are not safe places, many will die needlessly.
The justices themselves believe these cases are of enormous consequence. It is exceedingly rare for the Supreme Court to hear cases on an emergency basis. The court will decide the cases with incredible speed—likely within days or weeks. And the hearings couldn’t come at a more urgent moment, potentially at the peak of an Omicron surge that is widely expected to test hospitals and medical workers already stretched to their limits.
The justices live in our society, and would rightly be castigated for barring these vital measures to save lives. Ideally, the justices would uphold both rules. But given the court has already ruled against federal powers to halt evictions, and ruled against, for example, California’s limits on at-home gatherings, it is far from clear that they will.
One way this may play out is for the court to split the decision—to uphold the requirement for health-care workers and strike down the one for businesses. But that would be disastrous for Biden’s strategy to boost vaccination rates, because OSHA’s large business mandate—more than anything else he has done since becoming president—has the potential to nudge millions of Americans to get the jab.
The bar for an OSHA Emergency Temporary Standard (the emergency power the agency used to issue the mandate) is very high, and the court could say—implausibly—that this two-year pandemic isn’t an emergency. That would be an egregious mistake, as well over 1,000 Americans—most unvaccinated—continue to die every day. Meanwhile, a society without a broad vaccine mandate only invites more disturbing mutations of the virus among the unvaccinated.
An even scarier possibility is if the court were to rule that federal agencies cannot issue broad regulations without explicit congressional approval, as some conservative lower courts have done. Three years ago, this would not even seem possible, but the court is so conservative and adverse to federal power that it just might go that far. That would effectively doom both mandates.
Congress intentionally granted both OSHA and CMS broad powers that demand flexibility and rapid action. Such powers are more important than ever in an historic pandemic. Unelected and lay judges shouldn’t be too quick to substitute their judgments for that of career professionals and the wide consensus of scientists. If voters are unhappy with what Congress or President Biden have done, they can express their will at the ballot box.
There are many decades, even centuries, of jurisprudence upholding broad federal agency powers. The first case dates back to 1813. Since 1935, the Supreme Court has not once found a broad delegation of federal power unconstitutional. Changing that precedent on an emergency motion involving two rules trying to prevent hospitalizations and deaths in a pandemic would be the height of judicial arrogance, and ignorance.
More than yet another disturbing legal precedent in an era defined by them, though, overturning these mandates would be horrific policy. Our legislative process was intended to be slow, cumbersome, and hard to use. It’s inflexible by design. If Congress could not create agencies to handle things that need quick response, we would not be able to handle policy crises very well.
Lawmakers are experts at politics, however ugly that may be. But politicians are not—despite what many members of Congress continue to suggest—experts in science or public health. It’s reasonable for them to ask health and safety experts to implement their political guidance in a professional manner. If Congress has to directly decide how to achieve the goals it sets, the American people are in deep trouble.
It is tempting to conclude that Friday’s hearings are just legal technicalities. They’re not. They could change the course of the future, and every American should be deeply concerned if they can’t look to the federal government to safeguard their health, safety, and security.