ACLJ Legal Team Analysis: Supreme Court Hears President Biden's Mandate


Jay Sekulow

January 7

5 min read

Executive Power



The Supreme Court just heard oral arguments in the case against President Biden’s employer vaccine mandate that forces employers with 100 or more workers to implement a policy requiring vaccination or, in the alternative, to submit to weekly testing and wear masks. We’re representing The Heritage Foundation in a lawsuit that challenges this mandate. The law goes into effect Monday unless it receives an administrative stay from the Supreme Court.

During oral arguments, Supreme Court Justice Samuel Alito point-blank asked if it would be appropriate for the Court to issue an administrative stay:

These cases arrived at this Court just a short time ago. They present lots of difficult complicated issues, we have hundreds of pages of briefing. We are receiving very helpful arguments this morning. Does the federal government object to our taking a couple of days maybe to think about this, to digest the arguments, before people start losing jobs?

To which, President Biden’s Solicitor General Elizabeth Prelogar replied:

Well, Justice Alito, if you are asking whether it would be appropriate for the Court to issue a brief administrative stay, certainly we think that would be in the Court’s prerogative if it thinks it’s necessary to do that. Ultimately, for the injunction that they are actually asking for here, the applicants would have to show an indisputably clear right to relief, which we think they can’t satisfy.

This mandate has been very confusing for employers struggling to understand how to comply without penalization. That is why most employers were hoping to get an administrative stay. But, just when we thought we understood exactly what the mandate meant, the Solicitor General laid out a more specific direction for employers to follow:

The employers who are covered by this needed time to come into compliance. The agency announced that it was exercising enforcement discretion because of the confusion that had been created by the Fifth Circuit stay. Maybe it would be helpful for me to explain exactly what the January 10th deadline means with respect to compliance. The agency has announced that for employers that are acting in good faith, it is not going to enforce any of the provisions of this ETS until January 10th. What that means as a practical matter, is that employees need to be adopting their policies, they need to be ascertaining the vaccination status of their employees and as of January 10th, they need to be requiring masking for any employees who remain unvaccinated. So, it is not as though immediately employees are going to be quitting their jobs or leaving in response, with the worst predictions. On January 10th, if this standard remains in effect, then masking will be immediately required, and the testing kicks in on February 9th.

We still think the Court needs a couple of days to figure out these complicated details and how it should be implemented exactly.

ACLJ Senior Counsel for Global Affairs Mike Pompeo gave his sense of how the oral argument is going:

First principle, this is an OSHA rule, right? I remember when we were trying to do things through administrative processes. They have ultimately failed to execute. So as a purely legal matter, I think this is ultimately going to be found by the Supreme Court not to be permissible or appropriate. I think they are going to strike this down. As for the immediacy of this, you could hear the response from the government on the questions that Justice Alito asked this morning, they know that they sat on this for a long time . . . declaring that this is an emergency in a way that doesn’t permit the Court the capacity to do this in a reasoned way. I think the courts are going to find that that’s the case.

On the bigger issue . . .  I think you’ve got this exactly right. These mandates don’t function to serve the purpose for which the Biden Administration’s Justice Department has put their legal defense forward. We know that this COVID thing is going to be here for a while. We know that most people are choosing to become vaccinated and that’s keeping them from going to hospitals and keeping them safe. Those are all good things. But the federal government issuing a mandate for such a thing and doing it on pain of loss on the capacity to take care of your family and to feed your children, pay your lease and rent, I think that is an outrageous overreach by the United States government as a policy matter. And I think they will find it both unlawful and illegal as a legal and constitutional matter as well.

We will continue to monitor developments on this case and provide you with updates.

Today’s full Sekulow broadcast is complete with even more analysis of President Biden’s employer vaccine mandate oral argument at the Supreme Court.

Watch the full broadcast below.