On Thursday, the U.S. Supreme Court by a vote of 6-3 blocked President Joe Biden's vaccine mandate for private businesses with 100 or more employees. The case looked to examine whether it was within the authority of the Occupational Safety and Health Administration (OSHA) to enforce the mandate. As a concurring opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Samuel Alito put it, "Who decides?" Throughout the concurrence, it is made clear that it is not with OSHA, but rather with Congress, something it was emphasized "is clear."
What it comes down to is one of the most basic and fundamental principles of government's powers. The concurrence cites one of the earliest and most memorable U.S. Supreme Court cases, McCulloch v. Maryland, a unanimous landmark decision from 1819 ruling Congress has implied powers under the "Necessary and Proper" clause.
"The federal government's powers, however, are not general but limited and divided," the concurrence noted. "Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. It must also act consistently with the Constitution’s separation of powers," it went on to read.
Citing how there is an "obligation" to be met, and last year's case of Alabama Assn. of Realtors v. Department of Health and Human Servs to do with the unconstitutional moratorium of convictions, the concurrence issued a reminder. "'We expect Congress to speak clearly' if it wishes to assign to an executive agency decisions 'of vast economic and political significance,'" it reminded, also going on to indicate in the next paragraph that OSHA failed the test.
The strong and clear cut words only get more so from there. "Congress has nowhere clearly assigned so much power to OSHA," Gorsuch wrote. While Congress has passed other legislation to deal with the Wuhan coronavirus, vaccine mandates are not one of them. "But Congress has chosen not to afford OSHA—or any federal agency—the authority to issue a vaccine mandate. Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation," it read with added emphasis.
The concurrence also appeared to call out the way OSHA handled the mandate. "It seems, too, that the agency pursued its regulatory initiative only as a legislative "'work-around,'" the concurrence suggested. "Far less consequential agency rules have run afoul of the major questions doctrine."
When it comes to OSHA's replies, the concurring opinion argues that "We have nothing like that here when it comes to Congress mandating vaccines, as it has not "expressly" done so against the Wuhan coronavirus.
Even more telling points came later on in the concurrence. "Historically, such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers. Meanwhile, at the federal level, OSHA arguably is not even the agency most as- sociated with public health regulation."
The concurrence also went back to the constitutional question, stressing its importance. "Why does the major questions doctrine matter? It ensures that the national government’s power to make the laws that govern us remains where Article I of the Consti- tution says it belongs—with the people’s elected representatives," it read at one point "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."
Along with the nondelegatrion doctrine, the major questions doctrine is "designed to protect the separation of powers and ensure that any new laws governing the lives of Americans are subject to the robust democratic processes the Constitution demands." Further, the "nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials."
Citing the late Justice Antonin Scalia, whom Gorsuch replaced, the concurrence makes clear that "Whichever the doctrine, the point is the same. Both serve to prevent 'government by bureaucracy supplanting government by the people.'"
Of particular concern and warning for OSHA, the Biden administration, and future Congresses, is that such power for OSHA could be unconstitutional even if it was delegated. "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," the concurrence reads with original emphasis.
The concurrence ends on a particularly fitting note to keep in mind about such trying times as dealing with a pandemic that has gone on for close to two years now. "Instead, we only discharge our duty to enforce the law’s demands when it comes to the question who may govern the lives of 84 million Americans. Respecting those demands may be trying in times of stress. But if this Court were to abide them only in more tranquil conditions, declarations of emergencies would never end and the liberties our Constitution’s separation of powers seeks to preserve would amount to little."
The overall decision and the concurrence in particular is especially a blow to the Biden administration, which has sought to overuse its federal authority in a variety of ways to deal with the Wuhan coronavirus that then Democratic nominee Joe Biden said he would "shut down" as a campaign promise. This includes but is certainly not limited to the eviction moratorium cited above, which the Court ruled against in August.
As Katie covered earlier on Thursday, Biden is still adamant that private businesses enforce such a mandate, as a matter of something he is advocating for.
"The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as president to advocate for employers to do the right thing to protect Americans’ health and economy," Biden said. "I call on business leaders to immediately join those who have already stepped up – including one third of Fortune 100 companies – and institute vaccination requirements to protect their workers, customers, and communities."
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