Law Experts: Supreme Court Likely to Rule on Biden Vaccine Mandate

Law Experts: Supreme Court Likely to Rule on Biden Vaccine Mandate supreme court building (Drew Angerer/Getty Images)

By Charlie McCarthy | Wednesday, 03 November 2021 09:09 AM

Constitutional law experts expect the Supreme Court ultimately to decide whether President Joe Biden's vaccine mandate is constitutional, Yahoo Finance reported.

"For a lot of us, it's a question of when rather than whether the Supreme Court will get involved with what they think is the right kind of case," Northwestern University Law School professor Daniel Rodriguez told Yahoo Finance.

Rodriguez added that the appropriate case likely will be one that asserts vaccine mandates conflict with workers' religious beliefs.

Georgetown University Law professor Lawrence Gostin agreed with Rodriguez.

"I think it's likely that before this pandemic is over the court will hear a highly momentous case on public health powers and religion," Gostin told Yahoo Finance. "The Supreme Court is highly partial to religious claims and tends to bend over backwards to protect the freedom of religion."

Yahoo Finance said Gostin stressed that it's too soon for the high court to take up the issue right now.

Biden in early September announced plans to implement a vaccine mandate on federal employees and companies with 100 or more workers requiring vaccination or weekly testing. Penalties include potential loss of job.

The Labor Department's Occupational Safety and Health Administration (OSHA) is expected to release the exact order soon.

Some companies proactively implemented their own vaccine and testing mandates.

However, workers already have sued over those mandates, and some state officials have filed preemptive challenges to Biden's directive.

Critics of Biden's order say it lacks proper medical or religious exemptions, and/or also violates union contracts.

One reason people such as Rodriguez and Gostin expect a suit based on religious grounds to reach the high court is because the justices in recent years have issued rulings in favor of those who say their religious rights were violated. One unanimous decision ruled for a Catholic social services agency that refused to work with same-sex couples who wanted to foster children.

Federal courts have followed the 1905 Supreme Court precedent in Jacobson v. Massachusetts — a decision that did not carve out a requirement for religious exemptions in holding that states and other entities (e.g. private businesses) could mandate vaccination.

Rodriguez, though, said protections for religious liberty have expanded in the past 116 years.

"[Jacobson v. Massachusetts] was well before the kind of scrutiny given to individual rights, Constitutional rights, that we see commonly today," Rodriguez told Yahoo Finance. "In 1905, most of the Bill of Rights — the first 10 Amendments of the Constitution — were not extended to apply to the states.

"It's really hard to draw these massive conclusions from a case decided at such a different point in time."

The Supreme Court has weighed in twice on COVID 19 vaccine mandate challenges. It declined to take up an appeal from Indiana University students who lost a lower court bid to carve out exceptions to the school's mandate, and it declined to take up an appeal from healthcare workers challenging Maine's vaccine mandate.