Supreme Court takes aim at vaccine mandates — and executive power

·Senior Editor
·5-min read

“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

One of President Biden’s key COVID response strategies  vaccine mandates for the private sector — faced new questions about its future on Friday, when the Supreme Court signaled it may be ready to knock down at least one of the administration's vaccine mandates for workers.

The judges heard arguments in two cases, both centering on how much authority the Biden administration has over businesses’ vaccine policies. The first, and most significant, case concerns a rule issued by the Occupational Safety and Health Administration (OSHA) that would require all companies with more than 100 employees to ensure their workforce was either vaccinated or tested for the virus on a weekly basis. The White House estimates that the policy would apply to more than 80 million workers in the U.S.

The administration’s lawyers argued that the regulation was within the scope of powers that Congress granted to OSHA when it created the agency in the 1970s. But the court’s six conservative justices appeared to strongly disagree.

The second case involved a rule that would require health care workers at facilities that receive Medicare or Medicaid funding to be vaccinated. Legal analysts say the conservative justices seemed less hostile to that policy, but it was unclear how they might ultimately rule.

Why there’s debate

The outcome of these cases will be significant for the country’s response to the pandemic. OSHA estimates the employer mandate would save 6,500 lives and prevent 250,000 hospitalizations. But the rulings could also tackle broader constitutional questions about how much authority the executive branch really has.

Many liberal commentators expect the court to use the employer mandate case as an opportunity to reduce the authority of what’s commonly known as the “administrative state” — the complex web of hundreds of federal agencies that set policies for everything from immigration to food safety. These commentators say these powers, although vague in an abstract sense, are crucial to the government’s ability to function.

Conservatives, on the other hand, argue that a ruling that cut back the administrative state’s ability to create rules would be good for the American people. In their eyes, presidents and executive branch appointees have far too much regulatory power and wield it without congressional oversight.

What’s next

The vaccine mandate for employers technically went into effect on Monday, but the Biden administration has said it won’t begin enforcing the rule until next month. That short timeline could compel the court to release its ruling much more quickly than usual or issue an order in the near future blocking the mandate from going into effect while it considers the case.


The government’s ability to fight the pandemic could be severely limited

“Whatever the reasons that ultimately justify the rulings, the most likely outcome for the country seemed clear: fewer required vaccinations and testing, likely leading to greater sickness and even more death.” — Jeffrey Toobin, CNN

The end of federal mandates doesn’t mean all vaccine rules go away

“We are not in a situation in which, if the federal government stays its hand, no one will act and people will die. The federal government has limited, enumerated powers that are rooted in the Constitution; its powers do not increase because of exigencies or because smart, well-meaning federal bureaucrats earnestly believe the government has sensible answers to pressing problems.” — Andrew C. McCarthy, National Review

Rules on everything from immigration to environmental policy are on the line

“A common rhetorical trope is that these challenges are referenda on individual liberty — and on our constitutional right to refuse to be vaccinated. … Instead, the cases are actually about something even more important: the future power of federal administrative agencies to regulate … anything.” — Steve Vladeck, MSNBC

Allowing the rule to stand would mean consenting to a presidential power grab

Loose language in old laws isn’t enough to support a presidential power grab. Yet that’s all the support the administration has been able to muster for the vaccination mandates. … None of these statutes contain even a hint that Congress authorized any agency to administer broad-based vaccination mandates touching millions of Americans.” — David B. Rivkin Jr. and Andrew M. Grossman, Wall Street Journal

Conservative justices want to create a government that simply can’t function

“These justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well.” — Dahlia Lithwick and Mark Joseph Stern, Slate

Future emergencies may be much worse if the government’s power to respond is rolled back

“There are good reasons Congress has chosen to delegate broad regulatory powers to agencies. The need to act rapidly is especially important in a health emergency. If the high court were to curb federal public health powers now, it could prove ruinous when the next crisis strikes.” — Lawrence O. Gostin, Jeffrey E. Harris and Dorit Rubinstein Reiss, Washington Post

Rule-making powers should lie with Congress, not unelected bureaucrats

“This is encouraging for those who believe in the Constitution as well as the principles of limited government, federalism, personal freedom, and bodily autonomy. After decades of watching the Supreme Court expand the power of the federal government, perhaps we are now embarking upon a new era in which the legislative branch will regain and reassert its proper role as a much-needed check on a power-hungry executive branch.” — Chris Talgo, Washington Examiner

Blocking Biden’s mandates would undermine American democracy

“An elected Congress authorized the executive branch to take certain steps to encourage vaccination, and Joe Biden was elected to lead that branch. So that means that President Biden and his duly appointed subordinates get to make difficult decisions, even if some Americans don’t like those decisions. The parties challenging Biden’s policies, meanwhile, effectively argue that the Supreme Court should decide America’s vaccination policy.” — Ian Millhiser, Vox

The court could deal a major blow to Biden’s agenda

“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.” — Jonathan Turley, The Hill

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