It’s long been axiomatic in the legal profession that tough facts make bad law. Yesterday’s forked decisions from the Supreme Court in two vaccine mandate cases now add a corollary to that principle: Quick cases make milquetoast opinions.
The Supreme Court heard the Occupational Safety and Health Administration and Medicare/Medicaid mandate cases in tandem on an expedited basis last Friday. Although court observers expected lightning-fast decisions, the opinions in National Federation of Independent Business v. Department of Labor and Biden v. Missouri didn’t drop until Jan. 13.
The high court issued both decisions as per curium, or “by the court,” unsigned opinions, with a 6-3 majority staying the OSHA de facto vaccine mandate in National Federation and a 5-4 majority in Biden v. Missouri allowing the Center for Medicare and Medicaid Services’ rule requiring vaccines for medical facility workers to take effect. Justices John Roberts and Brett Kavanaugh switched sides to join the court’s leftist members in the Medicare/Medicaid case, with Justice Clarence Thomas and Justice Samuel Alito issuing separate dissents joined by Justices Amy Coney Barrett and Neil Gorsuch in Biden v. Missouri.
In National Federation, the six-justice majority entered a stay to prevent OSHA’s “emergency temporary standard,” requiring employers with 100 or more employees to either compel their employees to become vaccinated or to test weekly for Covid and wear masks at work, from going into effect. The court concluded that the employers, states, and other entities and individuals challenging the rule were “likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate.”
The nine-page majority opinion methodically detailed the backdrop to the Biden administration’s OSHA work-around and the procedural history. That saw the case going from the Fifth Circuit, where the federal appellate court had stayed the rule, to the Sixth Circuit, where after all of the cases challenging the rule were joined the Cincinnati-based court removed the stay.
After laying out these details, the National Federation court then analyzed the rule at issue and concluded that the challenge to OSHA’s emergency vaccine mandate was likely to succeed because the federal agency “lacked authority to impose the mandate.”
While correct, the majority opinion said little of matter. Yes, “administrative agencies are creatures of statute” and “have only the authority that Congress has provided.” And, no, in passing the Occupational Safety and Health Act in 1970, Congress did not plainly authorize OSHA “to order 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense.”
Merely adding that OSHA’s rule was “no ‘everyday exercise of federal power,’ but “instead a significant encroachment into the lives—and health—of a vast number of employees” that required Congress to “speak clearly” provided little upgrade to the opinion: Given the breadth of the overreach and the offense to our constitutional republic, passion was required, not pedanticism.
Justice Gorsuch’s concurrence, joined by Justices Thomas and Alito, dabbled more directly in first things, from the separation of powers to federalism to self-governance.
“There is no question that state and local authorities possess considerable power to regulate public health,” Gorsuch began, before stressing that “the federal government’s powers, however, are not general but limited and divided.” Thus, the federal government must both “invoke a constitutionally enumerated source of authority” and “act consistently with the Constitution’s separation of powers.”
On this latter point, Gorsuch provided a much-needed exposition. Article I of the U.S. Constitution provides that “the national government’s power to make laws” belongs “with the people’s elected representatives.” If Congress seeks to provide its legislative powers to unelected officials, Justice Gorsuch continued, it must do so clearly and purposefully.
“But the Constitution imposes boundaries here,” he stressed, for “if Congress could hand off all its legislative powers to unelected agency officials, it ‘would dash the whole scheme’ of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.”
Called the non-delegation doctrine, it prevents “government by bureaucracy supplanting government by the people,” Gorsuch wrote, quoting the late Justice Antonin Scalia, before stressing the importance of that principle to the case at hand: If OSHA had the power to mandate vaccines or testing, as it asserted, “that law would likely constitute an unconstitutional delegation of legislative authority.”
Sadly, Gorsuch’s concurrence could not garner the agreement of the majority of justices, leaving the bland opinion put forth for the court in National Federation to control.
The real tragedy came, however, in the companion case of Biden v. Missouri. That case was argued the same day, but with the Supreme Court ruling on Jan. 13 that the Department of Health and Human Service’s vaccine mandate for medical facilities receiving Medicare and Medicaid funding could go into effect.
While at first blush the cases seem substantially different, with National Federation concerning an emergency rule issued by OSHA and Biden v. Missouri addressing a mandate applying only to recipients of federal Medicare and Medicare funds, at the core the cases involve identical concerns: Whether Congress did, or could, grant unelected bureaucrats such broad power over Americans.
Unlike the National Federation case, in Biden v. Missouri, Justices Roberts and Kavanaugh both acquiesced in the Department of Health and Human Services’ power grab, based on “a hodgepodge of provisions.” Justice Thomas exposed that reality in his dissent, which Justices Alito, Gorsuch, and Barrett joined.
The mandatory vaccination rule issued by the Centers for Medicare and Medicaid Services (CMS) failed to find statutory support in the governing statutes, Justice Thomas explained. While Congress authorized the CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions,” and to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs,” the vaccine mandate has no more than a “tangential” connection to the management of Medicare and Medicaid, Thomas wrote.
Nor did the various random statutory provisions grant HHS the authority to “require millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months,” Justice Thomas explained, before stressing: “Vaccine mandates also fall squarely within a State’s police power, and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”
Congress’s failure to expressly authorize the CMS to mandate vaccines at Medicare- and Medicaid-funded facilities represented but one of the problems with the rule. Justice Alito, in a separate dissent joined by Justices Thomas, Gorsuch, and Barrett, added to the analysis a discussion of CMS’s failure to comply with the notice-and-comment mandates Congress established before agencies could promulgate regulations. That violation, Alito explained, doomed the vaccination mandate because there was no “good cause” to sidestep those requirements.
In finding the CMS violated the notice-and-comment rule, Alito stressed, as did Gorsuch in his National Federation concurrence that, “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.”
“Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns,” Justice Alito continued, noting, “today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators.” Under these circumstances, then, the notice-and-comment period proves indispensable, Alito explained—unless, that is, you are the Biden administration.
The Biden v. Missouri dissents, however, did not go far enough. The same separation of powers problems plaguing the OSHA regulation apply equally in the context of the CMS rule. Yet the dissenting justices gave short shrift to those concerns.
The question is, why? Also, why did Gorsuch’s concurrence in the OSHA case only garner three votes, including his own? Was it the procedural posture of the case: A hearing not on the merits but on the propriety of a stay? Was it the time crunch? Was it a desire for more detail and nuance?
Or was it because reaching a truly conservative five-justice majority is as elusive as an end to this pandemic.