On the evening of Wednesday, December 22, 2021, the Supreme Court of the United States announced that it will hold a special session on January 7, 2022, to hear oral argument in cases concerning whether two Biden administration vaccine mandates should be stayed. One is an interim final rule promulgated by the Centers for Medicare and Medicaid Services (“CMS”); the other is an Emergency Temporary Standard (“ETS”) issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”). The CMS interim final rulepresently stayed in 24 states, would require COVID-19 vaccination for staff employed at Medicare and Medicaid certified providers and suppliers. The OSHA ETS, which requires businesses with 100 or more employees to ensure that workers are vaccinated against the coronavirus or otherwise to undergo weekly COVID-19 testing, was allowed to take effect when a divided panel of the United States Court of Appeals for the Sixth Circuit, to which the consolidated challenges had been assigned by the Judicial Panel on Multidistrict Litigation issued a ruling, on December 17, 2021, lifting a stay that had been previously entered by the Fifth Circuit. Multiple private sector litigants and states immediately challenged the decision.

The Supreme Court rarely holds oral argument on emergency applications. Generally, they are handled “on the papers” and, more often than not, are ruled upon by a single Justice, who could refer the matter for determination by the entire Court. In the instant cases, the essential issue is whether the Executive Branch acted within the authority delegated to it by Congress. Justices across the ideological spectrum apparently are in agreement that the pandemic-related public health and safety issues are of such immediate importance that it is appropriate for the entire Court to address preliminary matters as expeditiously as possible.

The Court will address only whether the mandates should be preliminarily enjoined pending litigation and decision in the lower courts. The standard for granting preliminary relief, however, involves determining whether the parties seeking stays have demonstrated a likelihood of ultimate success on the merits. Thus, while the January 7 arguments might trigger multiple opinions from the Court, the Justices’ decision to grant or deny stays will not be a final decision as to the lawfulness of the mandates. Nevertheless, whatever opinions are delivered might open a window into the Justices’ thinking as to the ultimate fate of the Biden mandates, which, though first to be decided upon by lower courts, likely will return to the Supreme Court.

Note that the cases before the Supreme Court do not involve individual employers’ self-imposed mandates with respect to vaccination and testing, or state and local mandates. Such mandates, which frequently are being upheld by the courts, might be affected by labor and employment discrimination laws, but they do not concern the authority of the Executive Branch to issue the vaccination mandates. That is what the stay petitions in the Supreme Court are about.

The two matters before the Supreme Court are Biden v. Missouri and Becerra v. Louisiana, challenging the CMS interim final rule, and National Federation of Independent Business v. OSHA and Ohio v. OSHA, which challenge the OSHA ETS. We will be watching these and related matters closely and will continue to advise our clients on developments.

Back to Health Law Advisor Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Health Law Advisor posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.