The Supreme Court has issued its opinions in the two vaccine mandate cases. In the case involving the mandate that all employers with 100 or more employees require their staff to be vaccinated (with very limited exceptions), the Court, by a 6-3 vote, reinstated an injunction against the regulation adopted by the Occupational Health and Safety Administration (OSHA) being enforced. The Justices in the majority were Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Barrett. The dissenters were Justices Breyer, Sotomayor and Kagan.
In the case involving the mandate that all healthcare workers at facilities that receive Medicare or Medicaid funds be vaccinated (with the exception of employees who telecommute entirely) or that the medical facility with unvaccinated healthcare workers would be barred from participating in Medicare and Medicaid, the Court, by a 5-4 vote, lifted the injunction against the applicable regulation. The Justices in the majority were Justices Roberts, Breyer, Sotomayor, Kagan and Kavanaugh. The dissenters were Justices Thomas, Alito, Gorsuch and Barrett.
Note that the switch by Justices Roberts and Kavanaugh from blocking a vaccine mandate in the one case to allowing a vaccine mandate in the other case created the mess and confusion about the power of the Federal government to mandate that Americans be jabbed with a vaccine or lose their jobs. This reinforces the “enigma of Justice Roberts” and perhaps the alliance in that “enigma” of Justice Kavanaugh.
Before we object that it is unfair to call these votes a reinforcement of such an “enigma” since Justices Roberts and Kavanaugh are part of a conservative majority committed to enforcing and interpreting the Constitution as written and generally join the Court’s conservatives in opinions of the Court and in dissents, let me say that I am not suggesting that Justices Roberts and Kavanaugh have followed in the footsteps of Justices like Justice Souter, who once appointed and seated, became a reliable liberal vote.
The reason I say “enigma” is that in major cases where the weight of the major liberal institutions in the media and the universities and the leaders of the Democrats express outrage at the possibility of striking at one of their sacred cows and they scream about a partisan Court, Roberts has generally sided with the Court liberals and increasingly so has Kavanaugh. We saw how Justice Roberts stretched and twisted to find a way to uphold the Affordable Care Act and avoid the questions of whether the Federal government could mandate that every person have health insurance and whether the statute violated the Commerce Clause. The question is why.
I wish I could say it was simply an honest disagreement based on the legal reasoning of Justices Roberts and Kavanaugh, but it appears that they are bending to the demands that the Court not be or appear to be partisan. It may also be, in the case of Justice Kavanaugh, that the vicious attacks on him during his confirmation hearing, have made him gun shy. As I discuss the healthcare worker mandate below, I will return to this very important question.
The opinion in the healthcare worker mandate case was an unsigned per curium opinion, meaning that no author was identified and that all 5 of the Justices in the majority agreed, with none issuing a concurring opinion. For those readers who don’t know the purpose of a concurring opinion, it allows a Justices to vote with the majority but explain where he or she has different reasons or doesn’t agree with statements in the majority opinion while still voting for the result. The Court’s opinion relied on numerous statutes (a “hodgepodge” in the words of the dissenters and many commentators) to conclude the Centers for Medicare and Medicaid Services had the authority to issue the regulation creating the mandate.
The Court said that the Secretary of Health and Human Services “has general statutory authority to promulgate regulations ‘as may be necessary to the efficient administration of the functions with which [he] is charged’…” — 42USC Section1302(a) — and that “one such function, perhaps the most basic, given the Department’s core mission is to ensure that the healthcare providers who care for Medicare and Medicaid patient protect those patients’ health and safety.” The Court further said that Congress authorized the Secretary “to promulgate, as a condition to a facility’s participating in the programs, such requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institutions.” (42USC Section 1395(c)(9). The Court noted that, in adopting the healthcare worker mandate and relying on these statutes, the Secretary “further noted that staffing shortages caused by COVID-19 related exposure and illness has disrupted patientcare.” That is a rather ironic justification since the regulation will result in many healthcare workers losing their jobs.
Now it should be noted that Congress adopts laws and under the Court’s delegation doctrine, Congress cannot delegate its legislative power to regulatory agencies. There are two important ancillaries that have followed in Supreme Court opinions.
One is what is known as the Chevron doctrine. That comes from a 1984 Supreme Court opinion in Chevron U.S.A., Inc. v Natural Resources Defense Council, Inc. in which the Court said that whenever a regulatory agency makes a rule or regulation which deals with a statute adopted by Congress — and there is ambiguity in the statutory language or the intent of Congress is not clear, and there is any reasonable way to argue that such rule or regulation is consistent with the statute under which it is acting — the Court will defer to the regulatory agency. The Court said that determining the intent of Congress often requires the opinions of experts and that judges should not interpose their own preferences.
The many subsequent cases applying this doctrine are beyond the scope of this article, but the core concept has been extremely consequential. It is at the heart of the growth of the regulatory state in which Congress adopts ambiguous or broad law and lets the agencies fill in the blanks. That absolves Congress from having to take actions that may be unpopular or consequential and it takes the general public out of the equation since regulators are not elected. The enormous power given to the regulatory agencies by the Chevron doctrine has been a prime factor in the enormous growth of the Federal government. The possibility that the Court would reverse or weaken Chevron terrifies fans of big government because without the ability to freeze out Congress and thus the public through their ability to vote for their elected members of Congress, many radical or so called “progressive” policies would have no chance of adoption.
The second ancillary is known as the “major questions doctrine.” This doctrine holds that courts should not defer to regulatory agency interpretations in matters that have “vast economic significance.” The Court has said repeatedly in subsequent cases that Congress must speak clearly if it intends to give a regulatory agency the authority to act in a particular way. Justice Kavanaugh addressed this doctrine in response to questions during his confirmation hearing when he said: “I’m not a skeptic of regulation at all. I am a skeptic of unauthorized regulation, of illegal regulation, or regulation that’s outside the bounds of what the laws passed by Congress have said. And that is what is at the root of our administrative law jurisprudence.” As we discuss the dissents, consider if Justice Kavanaugh’s interpretation of the “major questions doctrine” has been applied by Justice Kavanaugh.
As stated above, there were 4 dissenters. Three were 2 written dissenting opinions—by Justice Thomas and Justice Alito, and Justices Gorsuch and Barrett joined in both of these dissents.
Justice Thomas described the “major questions doctrine,” and he said there is no question the healthcare worker mandate falls within its scope. He noted that 10 million workers across the entire country are affected by either getting vaccinated or losing their jobs. He noted that nothing in the statutes on which the agency relied had clear language that could possibly empower the agency to make this mandate. Then he noted that: “Vaccines mandates fall squarely within a state police power”, citing Zuch v King 260 US 174 (1920). This case is a bedrock of federalism. Justice Thomas further said: “We expect Congress to use exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” Allowing the healthcare worker mandate to go into effect as the Court has done will allow the federal government to intrude on the police power of the states.
Justice Alito said: “Under the constitution, laws that impose obligations on the American people is conferred on Congress, whose members are elected by the people… Today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators, except in rare cases.” This was a direct attack on the administrative state.
Major issues remain to be resolved with respect to the Chevron doctrine and agency power and the question of what police power, if any, the federal government has. We will watch keenly in future case and with particular interest in the cases of Justice Roberts and Kavanaugh.