The Supreme Court struck down a Biden administration vaccine-or-test rule for large employers while upholding a mandate for health-care employers — not an outright win for the administration, but a better outcome than the hostility at oral arguments forecasted.
But both decisions are punctuated with the conservative justices’ attitude of extreme skepticism towards federal agency rulemaking, perhaps a harbinger of decisions to come. In particular, the Court will hear a marquee case in February that could have reverberations for the entire administrative state.
The Court’s decision-making on these administrative cases will be hugely important to not just the rest of President Joe Biden’s term, but the future of policy-making on a whole swath of issues. Congress hasn’t been able or willing to meaningfully legislate on climate change, for example, in around 30 years. With polarization only growing more potent, and the Senate paralyzed by the filibuster, Congress’ ability to pass major policy in the future looks even more limited. That puts enormous importance on what agencies can do with their regulatory and rulemaking power.
“Under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people,” Justice Samuel Alito wrote in his dissent in the health-care worker case, which was joined by Justices Neil Gorsuch, Amy Coney Barrett and Clarence Thomas. “Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns.”
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“Today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators,” Alito continued, giving voice to a worldview common on the right.
In both the large employers case over the Occupational Safety and Health Administration’s (OSHA) authority and the health-care one over Centers for Medicare & Medicaid Services’ (CMS) power, the conservative justices brought up doctrines that could help them slash agency power.
One of those, the major questions doctrine, holds that when agencies make decisions of great economic or political import, Congress must have specifically endowed those agencies with that power to allow it. Vague and ripe for abuse as that doctrine is, nondelegation goes even further, casting doubt on Congress’ ability to delegate regulatory authority to agencies at all.
Gorsuch, writing the concurrence on the OSHA case which was joined by Thomas and Alito, actually took the time to justify both doctrines, seemingly laying the groundwork to use them in the future.
“Why does the major questions doctrine matter?” he asks. “It ensures that the national government’s power to make the laws that govern us remains where Article I of the Constitution says it belongs — with the people’s elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress.”
The concurrence sang the praises of nondelegation as well: “The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials,” Gorsuch writes.
Critics of these doctrines, including the liberals on the Court, counter that they enable a shift that is distinctly, and alarmingly, undemocratic. Rather than vesting authority in federal agencies that have political accountability by way of their connection to the democratically-elected President, they enable an unelected, unaccountable Court of lay people to make often technical decisions best left to the experts composing those agencies.
Gorsuch and co. are not coy about the implications of these doctrines. Working in tandem, they prevent agencies, in this case OSHA, from doing much of anything.
“On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate,” Gorsuch writes. “On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”
That rationale does not seem to depend much on the statutes themselves, at least for Gorsuch, Alito, Thomas and Barrett. Chief Justice John Roberts and Justice Brett Kavanaugh flipped to vote with the liberals on the CMS case, where the government’s case was arguably stronger. There, CMS issued a vaccine mandate specifically for health-care workers, who interact with the elderly and the sick. They are also charged with maintaining the “health and safety” of their patients.
Still, that language was not specific enough for Thomas and the justices who joined him.
“The Government has not made a strong showing that this hodgepodge of provisions authorizes a nationwide vaccine mandate,” he wrote. “We presume that Congress does not hide ‘fundamental details of a regulatory scheme in vague or ancillary provisions.’”
These vaccine mandate decisions may be prologue for what’s to come, particularly in a February case that could determine the Environmental Protection Agency’s (EPA) ability to regulate greenhouse gases, and agencies’ leeway to use their congressionally-given authority writ large.
Based on the markers the conservatives staked out in these two cases, the right wing of the court may be preparing to shackle federal agency power more tightly than we’ve seen in decades.
“When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions,” the liberals, dissenting in the OSHA case, warned. “Today, we are not wise.”
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