Power Grab
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Interesting
The Supreme Court Just Made an Incredible Power Grab
The ruling striking down Biden’s vaccine mandate threatens decades of statutory authority to let agencies write important regulations.
Thursday’s Supreme Court decision blocking the federal government’s mandate that large businesses require vaccinations or tests of their employees is being seen as a blow to the Biden administration’s efforts to combat the Covid-19 pandemic. It is certainly that, despite the court’s split decision allowing the same mandate to remain in force for medical facilities that accept money under the Social Security Act.
But the biggest loser coming out of these decisions is not the president’s reputation as a problem solver but decades of constitutionally established power-sharing between the legislative and executive branches. And the winner, if that’s the right term, is the Supreme Court itself, which has executed an unprecedented power grab and masked it as an act of judicial restraint.
How did the court’s conservative 6-3 majority pull this off?
Here’s the key passage with the court’s unsigned opinion: “Although Covid– 19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. Covid–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” Because the statute gives the Occupational Safety and Health Administration authority to enact standards “reasonably necessary or appropriate to provide safe or healthful employment,” it reasoned, and Covid-19 doesn’t just spread in the workplace, OSHA acted outside its lane of authority. The vaccine-or-test mandate “draws no distinctions based on industry or risk of exposure to Covid-19,” and thus cannot be enforced. “[M]ost lifeguards and lineman face the same regulations as do medics and meatpackers,” for example.
So, there’s a looming Supreme Court threat to the viability of federal regulations as the ongoing bread-and-butter means of passing laws that span virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare. And these government actors aren’t elected or susceptible to losing their jobs at the ballot box. If a new threat to human health arises that affects workers by the millions, then Congress better have predicted the specific threat in the legislation enabling an agency to deal with it — or get its act together and pass actual emergency legislation under Article I. Of course, the horrors and unknowns of Covid-19 belie the feasibility of this option. The court is essentially saying, “Unless the states step in to address the next epic pandemic, you’re on your own, folks.”
Justice Neil Gorsuch’s concurring opinion lays out the conservatives’ theory well, even tying it expressly to the non-delegation doctrine. When the federal government acts, he explained, “[i]t must … act consistently with the Constitution’s separation of powers. And when it comes to that obligation, this Court has established at least one firm rule. ‘We expect Congress to speak clearly’ if it wishes to assign to an executive agency decisions ‘of vast economic and political significance.’” For this proposition, Gorsuch cites a decision from 2019 and one from 2021 — both recent, and both issued in an era of modern conservative-leaning jurists dominating the court. Gorsuch notes that “[w]e sometimes call this the major questions doctrine.”
To be clear, the so-called major questions doctrine was made up by the Supreme Court. It’s not in the Constitution. But Gorsuch added that “the major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.” A wolf in sheep-like clothing.
