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American jurisprudence on vaccine mandates dates back over 100 years, but the Supreme Court will likely focus on a 40-year-old administrative precedent that is continually under fire to determine if President Joe Biden can require Covid-19 vaccines and testing for large private businesses.

Courthouse News reports that In the wake of a Sixth Circuit reversal last week, the high court has docketed over a dozen emergency applications in just the last two days challenging a federal mandate that would require businesses with over 100 employees to require Covid-19 vaccinations or weekly testing. The test-or-vaccine mandate is enforced through the Occupational Safety and Health Administration and is set to take effect on Jan. 4. Without relief from the court, 84 million workers will be affected.

The court has already seen multiple applications come across its shadow docket concerning state vaccine mandates. So far, it has declined to offer those individuals any relief. What that will mean for the OSHA mandate, however, is still unclear.

The OSHA ETS and the CMS Interim Final Rule litigation matters, each of which are headed to the Supreme Court now, present a new question as to whether the federal government agencies have exceeded their authority in implementing their respective vaccine-or-test and vaccine requirements,” Michelle Strowhiro, a partner at McDermott Will & Emery, said via email. “Therefore, while past decisions may be some indication, it is anyone’s guess how the Supreme Court will come out on this latest challenge.”

As the Sixth Circuit determined Friday, one must only read the agency’s name to understand it has this authority and that the vaccine mandate is distinct from August precedent that ended the federal eviction moratorium.

“In comparing this case with Alabama Association, the Fifth Circuit wrote, “But health agencies do not make housing policy, and occupational safety administrators do not make health policy.” The Fifth Circuit fails to acknowledge that OSHA stands for the Occupational Safety and Health Administration,” a 2-1 majority of the Sixth Circuit wrote Friday.

Ranging from Republican states and conservative organizations to business groups and construction workers, groups challenging the mandate claim that OSHA does not have the authority to mandate vaccines.

“For the vast majority of covered employees, the Covid-19-related risk presented by work is the same risk that arises from human interaction more broadly,” Ohio and 26 other states wrote in their brief. “The virus’s ‘potency lies in the fact that it exists everywhere an infected person may be – home, school, or grocery store, to name a few.’ Because it is not an occupational danger, it is not the sort of danger that the Emergency Provision empowers OSHA to address.”

The justices will have to decide if OSHA is acting within its authority to mandate vaccines.

“The big issue is whether the Supreme Court will show deference to the agency’s determination that this is necessary and that it’s an emergency,” Lawrence Gostin, a professor at Georgetown Law, said in a phone call.

Specifically, the court could apply the 1984 case Chevron USA Inc. v. Natural Resources Defense Council Inc., which says unless Congress has said otherwise, the courts should defer to agencies where the agency’s interpretation of the law is not unreasonable.  

“I think that the court’s new conservative majority, they’re flexing their muscles, and even with the well-established precedents, like Roe v. Wade or Chevron, they seem to be fully prepared to take a different path than the court has done for many decades,” Gostin said.

“There is some dispute between the circuit courts as to whether OSHA’s actions implicate the major questions doctrine, with the Fifth Circuit applying the doctrine in its order granting a nationwide injunction on enforcement, and the Sixth Circuit more recently finding no applicability in its order dissolving that stay,” Strowhiro said.

Another factor to consider when analyzing what the court could do in this case is that multiple justices regularly express their animosity to Chevron. Justice Clarence Thomas did so less than a month ago in a Medicare reimbursement case when he floated overturning the precedent. Justice Neil Gorsuch also seemed skeptical of the precedent implying that the government often uses deference for rules to their advantage.