Below is my column in the Hill on the vaccine mandate cases before the Supreme Court. Businesses and groups are still waiting to see if the Supreme Court will issue an injunction in the OSHA case. The mandate goes into effect today. The issue is not what the decision should be on mandates but who gets to make that decision.
That question takes some justices to a place that they would prefer not to go …”Major-question-land.”
Here is the column:
“Major-question-land,” the term used by Louisiana solicitor general Elizabeth Murrill during Friday’s oral arguments over the Biden vaccine mandates, has an almost Disneyesque sound to it. However, unlike Yesterland or Tomorrowland, major-question-land clearly holds no attraction for the Biden administration or the court’s liberal justices.
The defenders of the mandates worked mightily to avoid the fact that it’s the first-ever national vaccine mandate and was decided without the approval of Congress. Chief Justice John Roberts, a vital vote needed by the administration, noted that this administration was relying on language passed roughly 50 years ago — closer to the Spanish Flu than the novel coronavirus — and stated ominously, “This is something the federal government has never done before.” That sounds not just like a question but a major one.
The major-questions doctrine maintains that courts should not defer to agency statutory interpretations when the underlying questions concern “vast economic or political significance.”
The controversy over the mandates shows the wisdom of the doctrine demanding that Congress not only take action but responsibility, too, for such major decisions.
With increasing confusion over changing CDC guidelines and the risk profile associated with the Omicron variant, congressional action could bring both greater legitimacy and clarity to questions swirling around mandates.
Instead, the Supreme Court is grappling with an executive move that was openly discussed not only as an avoidance of Congress but a circumvention of constitutional limitations.
It was not a good sign for the administration that the most referenced individual during oral argument was Biden’s chief of staff, Ron Klain, who tweeted that the mandates were “workarounds” of the Constitution. Chief Justice Roberts, Justice Neil Gorsuch, and others referred to Klain’s admission as the administration’s lawyers tried to argue that the executive had the constitutional authority to implement a national mandate.
The liberal justices took the “time is of the essence” argument to an almost apocalyptic degree:
Justice Sonia Sotomayor stated as a fact that “Omicron is as deadly as Delta and causes as much serious disease in the unvaccinated as Delta did.” That is not true. Omicron appears to be far more virulent, but less lethal than Delta. Sotomayor also claimed that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” That is also untrue. For patients, up to 17 years old, the seven-day average for hospitalizations was 797.
Justice Elena Kagan also raised eyebrows by claiming that “the best way” to prevent the spread of COVID-19 is “for people to get vaccinated,” and the “second best way” is to “wear masks.” Both claims were immediately challenged. While the vaccine can moderate or lessen the symptoms, states like Massachusetts are reporting that 95 percent of new cases involve the Omicron variant and that vaccinated people are contracting the variant in large numbers. Moreover, while long denied as “disinformation,” medical experts are now admitting that widely-used cloth masks are largely ineffective as protection. Even CNN’s experts now call the cloth masks “little more than facial decorations.”
The questionable claims by the justices were ironic in a case where they were arguing for sweeping deference to support sweeping agency mandates. (Justice Neil Gorsuch was also criticized for his claim on the death rate for flu).
Putting aside the factual claims supporting the mandates, there remains the even more dubious constitutional claims. Of the two rules at issue, the OSHA rule has the greatest reach and likely the greatest chance of being struck down. The conservative justices seemed more willing to recognize the government’s inherent authority to issue a mandate for health care workers. However, virtually no health care facilities challenged the rule, and the impact of the rule is not especially great given the industry-wide practice of requiring vaccinations. The OSHA rule attracted the most skepticism from all six conservative justices.
The OSHA rule was issued after months of President Biden claiming the authority to impose a national mandate and then admitting that he did not likely have such authority.
The OSHA rule was clearly “Plan B.”
Notably, while OSHA had discussed whether it could — or should — issue an “Infectious Diseases Regulatory Framework” covering airborne infectious diseases — long before the advent of COVID — it never did so. When the White House was looking for a workaround of the Constitution, OSHA suddenly found what it now claims to be clear authority.
It is not clear — from either a historical or a statutory perspective.
OSHA used an “emergency temporary standard” (ETS) that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” An ETS is generally used to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.”
The emergency need for the ETS seems as much political as health-based. After waiting for over a year, OSHA suddenly declared the need to promulgate an ETS without going through the required “notice and comment” process.
If the Biden administration loses on the OSHA case, it would constitute a major political and legal blow. The administration has racked up an impressive list of losses in federal court — but this one could be particularly costly.
Various justices like Neil Gorsuch have long criticized the “Chevron Doctrine,” the basis for courts deferring to federal agencies in their interpretations and policies. The liberal justices continually returned to such deference in their comments on Friday. This case could offer a perfect vehicle to curtail that doctrine and reduce that deference in future cases. That would impact policies across the legal landscape — from environmental laws to work-safety regulations to banking rules.
At a time when liberals are demanding more unilateral action from Biden due to congressional opposition to his agenda, such a ruling could curtail the ability of federal agencies to circumvent Congress.
This is also a major question.
That’s why neither the administration nor the liberal justices want to visit “major-question-land.” For those who want unilateral presidential power, that is not the “Happiest Place on Earth.” It is, however, the most democratic.