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Supreme Court to hear cases that will bear on Biden's workplace vaccine orders

SARAH MCCAMMON, HOST:

A week into the new year, the Supreme Court will hear two cases that will bear heavily on President Biden's ability to enforce his orders on COVID vaccines in the workplace. To help us understand what the justices will be deciding and what the implications could be, I'm joined by Jessica Levinson. She's a law professor at Loyola Law School in Los Angeles and host of the "Passing Judgment" podcast. Welcome to the program.

JESSICA LEVINSON: Great to be here.

MCCAMMON: So first, I want to break down these two cases that are going to be argued before the court. And let's start with the one that challenges federal authority involving OSHA, which, of course, is the Occupational Safety and Health Administration. What's being decided in that case?

LEVINSON: Whether or not OSHA stepped out of its lane, whether or not it went beyond its congressionally authorized authority here by saying we do need a vaccine mandate or a testing requirement when it comes to employees who work at certain places, places where there are more than a hundred employees. And what the challengers really are arguing is, OSHA, you went too far. Yes, we might be in a pandemic, but you haven't shown that you have to do this through your emergency authority, which indicates that you need a grave risk. And so this is really just about, how big or small is OSHA's emergency authority when it comes to implementing this vaccine mandate?

MCCAMMON: The other case focuses on presidential authority and, in this case, the authority of the Biden administration to deliver a federal mandate on vaccinations in the workplace, particularly among health care workers. What is the basis for that one?

LEVINSON: Very similar challenge here. So what the Biden administration is saying is, look, we have the authority. When it comes to institutions that receive federal funds - Medicare and Medicaid - then we can basically ask more of them in plain language. We can say, health care workers, you need to have a vaccine. We're requiring this vaccine for you because you're getting something from us. You're getting federal funds. The challengers are saying no. And you really need Congress to say you can implement something like this. So it really is a battle of, how big is executive authority when it comes to these situations?

MCCAMMON: Right. And if I'm understanding this right, I mean, these cases seem to sort of ground presidential or federal authority in different places - in one case, workplace safety regulations and in another, in this idea that the federal government can essentially attach strings to funding it provides for various purposes. I mean, how does the law speak to these kinds of situations? Do you have a sense of which argument might be stronger?

LEVINSON: Well, there's already been some disagreement in the lower courts regarding both of these questions. And you're exactly right to point out that it does bring up, broadly, questions about executive authority. You know, this is obviously a very conservative court. We have some signals that they might be kind of leery of the use of executive power in these situations. For instance, the court weighed in on Biden's eviction moratorium, where they said, you know, you want to do that again? You really need Congress to give you the authorization for that, or you really need Congress to authorize this.

MCCAMMON: You mention the eviction moratorium, and this isn't the first case involving COVID safety measures that the court has heard. What have they said so far in other relevant cases, and what might those decisions signal about this one or about these two cases?

LEVINSON: Great question. I think one thing that's really important to remember is that a lot of the other vaccine mandates have come from state and local governments, and that's really different legally. We kind of understand and are more familiar with state and local vaccine mandates. It's, in my mind, very clear that that's permissible under a state's - it's called police powers, meaning that states have power to protect the health, safety and welfare of their residents. And what we've seen from this court, I think appropriately, is deference to those decisions where they basically have let these vaccine mandates stand. They haven't taken up challenges to those vaccine mandates.

There are some situations where the court weighed in on the emergency docket where there were challenges to COVID restrictions regarding, for instance, restrictions on the number of people who could go to church or temple or mosques. But when it comes to the vaccine mandates, we have seen, I think, the court appropriately treat mandates that come from states and local governments as really falling within their police powers.

MCCAMMON: The overarching concern, though, of course, is federal authority, presidential authority. And these decisions will either affirm or constrain that. What is the potential for a wider interpretation? For example, could this end up being a much broader action by the Supreme Court, sort of cloaked as a decision about vaccine mandates, but that could speak to other issues?

LEVINSON: It could. And I think in some ways it's fair for us to say, OK, the court is giving us an indication of what it thinks about executive power and how far that power can reach, at least in the area of public health. On the other hand, I do think - although it's so tempting, I do think we need to be careful about reading tea leaves and saying, OK, well, this is what the court thinks about Biden's power. Because obviously, as we've already talked about, the power in this case comes from two different situations - from OSHA, from executive authority - when it comes to these health care workers who work for institutions that get funding from Medicare and Medicaid. And so in a way, the questions are narrow. And so I think we should be circumspect about drawing too many broad patterns or themes from whatever happens in the court next month.

MCCAMMON: These arguments are coming at a time when COVID is once again surging. Of course, there's this highly contagious new variant, the omicron variant. So the president's mandates would have a sense of urgency that would seem to demand immediate action from the court. Do you expect the court will expedite this decision?

LEVINSON: It's actually a very accelerated time frame for a challenge like this to come before the court, for them to set briefings and then oral arguments in this short of a time. But it needs to be, in this case. Obviously because of the pandemic, because of variants, but also because of when the mandates are supposed to kick in. The court has to weigh in, one way or another.

MCCAMMON: Jessica Levinson is a professor of law at Loyola Law School in Los Angeles and host of the "Passing Judgment" podcast. Thanks for taking the time to talk with us.

LEVINSON: Thank you.

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