WASHINGTON, D.C. (Nexstar) — As the omicron variant ravages across Texas and the nation, the U.S. Supreme Court reviewed two challenges to President Joe Biden’s COVID-19 vaccine policies in a special session Friday morning.

The high court heard arguments in cases related to the Biden administration’s vaccine-or-test rule for large businesses and a vaccine mandate for health care facilities, covering nearly 100 million Americans. In both cases, justices will decide whether the Biden administration has the authority to take such action.

When these rules were announced in November, the president pitched it as part of his broader agenda to end the pandemic, saying at the time, “Too many people remain unvaccinated for us to get out of this pandemic for good.” A few months later, the pandemic remains an ever-present challenge. In the past 10 days, Texas hospitalizations have doubled.

The court’s three liberal justices suggested support for the employer rule. Justice Elena Kagan said officials have shown “quite clearly that no other policy will prevent sickness and death to anywhere like the degree that this one will.” And Justice Stephen Breyer said he found it “unbelievable” that it could be in the “public interest” to put that rule on hold. He said on Thursday there were some 750,000 new cases in the country and that hospitals are full.

Texas has sued the Biden administration over both of these matters, as well as three other vaccination requirements, with Attorney General Ken Paxton consistently calling such efforts “federal overreach.”

“This is something the federal government has never done before,” Chief Justice John Roberts said, casting doubt on the administration’s argument that a half-century established law, the Occupational Safety and Health Act, confers such broad authority.

Rusty Rhoades, a professor of state and federal constitutional law at South Texas College of Law in Houston, said it’s difficult to predict how the Court will rule based on justices’ questioning but thinks the mandate for health care workers has a better chance of standing.

“It seemed based on the questioning that the court was a little bit more receptive to the idea that this mandate makes more sense in the health care area, rather than as a broader employer mandate that would apply across the United States to any large employers, no matter what industry,” he said.

OSHA & Centers for Medicare & Medicaid Services’ vaccine mandates

The rule for private businesses, issued by the Occupational Safety and Health Administration on Nov. 5, requires all employers with 100 or more employees to require them to get vaccinated against the coronavirus or tested weekly and wear masks at work. Texas hasn’t been the only state or entity suing over this — but efforts were eventually consolidated in the U.S. 6th Circuit Court of Appeals, which allowed the mandate to stay in place after another court temporarily blocked it. The rule is set to go into effect on Jan. 10, unless the Supreme Court blocks it.

The mandate for health care workers also issued in November by the Department of Health and Human Services requires all health care workers at facilities participating in Medicare and Medicaid programs — covering more than 10 million workers — to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. Lawsuits against this have resulted in injunctions temporarily blocking the mandate across 25 states, including Texas. Whereas a Florida federal judge issued a ruling allowing the mandate to remain in effect in 25 other states.  

Josh Blackman, a constitutional law expert, said how the Supreme Court rules will likely make policy more clear for employers and employees who fall under such mandates, many of which have been confused in the interim as the rules have been blocked and reinstated in lower courts.

“There’s a lot of confusion, because the Biden administration has tried through many levers to get people to get vaccinated. And Texas has consistently sued by the administration in different courts trying to block these various levers for vaccination. So I think there’s a lot of uncertainty now as issues wind the way the courts,” he said.

These challenges came to the court in December on an emergency basis, but justices chose to fast-track the cases to determine whether the mandates can remain in place while disputes over their legality pend in lower courts.