WASHINGTON (TND) — As the omicron variant makes up the majority of new COVID-19 cases in the United States, the Supreme Court is poised to decide whether tens of millions of Americans will be required to be vaccinated.
This week, the court announced it will hear oral arguments on Jan. 7 in cases regarding two mandates: The Department of Health and Human Services requiring shots for healthcare workers in facilities that receive Medicare or Medicaid funding; and an OSHA rule requiring vaccines or weekly testing for employees of businesses with 100 or more workers.
The central question is whether or not these federal agencies have the authority to issue a vaccine mandate," lawyer Leslie Silva said.
Silva's New York law firm Tully Rinckey, PLLC has been handling cases related to COVID-19 vaccine mandates. She said one way or another, clear guidance from the high court is needed.
“We can’t continue to have these mandates upheld, overturned, stayed, not stayed. It’s confusing for people," Silva said.
Though it's not part of the central question Silva described, she said the surge of the omicron variant could play into the justices' decision.
“They can consider, also you know, general public welfare. We are talking about a very contagious, communicable disease," Silva said.
Washington and Lee University School of Law Emeritus Professor Timothy Jost agreed.
One of the things the court has to be convinced is that there is an emergency and I think with omicron, the emergency is even clearer," Jost said.
Jost argued the DHHS mandate may have a better chance of being upheld because it relates to conditions of federal spending, but believes both mandates were created on solid legal ground.
“The courts have upheld regulations of workplace conditions for decades," Jost said.
Some legal experts speculate the Supreme Court's decision to strike down the Centers for Disease Control and Prevention's eviction moratorium earlier this year could be a sign it will do the same for these federal rules.
Jost said the facts in these cases are much different than the CDC's.
“The problem, in that case, was that the court just didn’t think that Congress had authorized the CDC to act to block evictions nationwide and the whole case really turned on the language of the statute and in these cases, you have much clearer authority from Congress to require vaccines," Jost said.