Much will be said about the implications of yesterday’s Supreme Court decision effectively blocking the Biden administration’s COVID-vaccine mandate for the 84 million workers affected, not to mention their families, and anyone they come in contact with. But as a matter of constitutional law, Justice Neil Gorsuch nailed the crucial issue in the opening line of his concurring opinion: “The central question we face today is: Who decides?”
According to the Court’s conservative majority, the answer appears to be that the Supreme Court is the ultimate decider of all things—such that its unelected members can wipe out the actions of the democratically elected branches of government with the stroke of a pen.
This is not how things are supposed to work.
There are four competing sources of governmental power when it comes to vaccine requirements.
First, there are the states, which traditionally enjoy what’s known as inherent “police power” to regulate health and safety. Police officers and sheriffs act at the state and local level, for example, pursuant to state and local legislation. The leading case on whether individuals have a constitutional right to reject vaccines, Jacobson v. Massachusetts, involved a state vaccine mandate—not a federal one. The Court held in 1905 that states could enact compulsory smallpox-vaccine requirements to protect public health, despite a plaintiff’s claim that a Massachusetts law violated his constitutional rights.
Second, there’s Congress, which has the power to legislate—or, in other words, to create rules controlling private conduct—under Article I of the Constitution. Here, Congress used that power to pass the Occupational Safety and Health Act in order “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”
Third, there’s the Occupational Safety and Health Administration, the federal agency that Congress created in the OSH Act. Congress gave OSHA the power to promulgate “mandatory occupational safety and health standards applicable to business affecting interstate commerce,” among other things. It also gave OSHA the power to issue an “emergency standard” if it determines that employees could be in “grave danger” of exposure to “substances or agents determined to be toxic or physically harmful.” In Industrial Union Department v. American Petroleum Institution, the Supreme Court in 1979 fully recognized OSHA’s “broad authority … to promulgate different kinds of standards,” but held that before the agency can ban carcinogens, it must perform a cost-benefit analysis. It was through OSHA, which resides in the executive branch, that President Joe Biden issued the emergency standard that required mandatory COVID vaccines or tests in workplaces with 100 or more employees.
Fourth, there’s the Supreme Court, which held in 1803 that it alone—not the other two branches—has the power to declare laws unconstitutional and thereby annotate the Constitution itself.
So which governmental body gets to make the vaccine-mandate call on behalf of American workers—the states, Congress, OSHA, or the Supreme Court?
The majority in this week’s OSHA decision picked Congress, arguing that there’s no express mandate in the statute that created OSHA about vaccines, so the power to establish federal vaccine laws stays with Congress. Although OSHA can determine fire and sanitation requirements for employers, the Court reasoned, a vaccine “cannot be undone at the end of a workday,” so in the Court’s view, vaccines are a different animal than other workplace safety measures.
In his concurring opinion, (the majority’s decision was issued “per curiam,” meaning no single justice took credit for writing it), Gorsuch emphasized the role of “state and local governments across the country and the people’s elected representatives in Congress” in combatting the coronavirus. To his eye, “an administrative agency in Washington” cannot do what OSHA did—that is, lodge “a claim of power to resolve a question of vast national significance” where “Congress has nowhere clearly assigned so much power” to it.
Justice Stephen Breyer sided with OSHA in his dissent, which Justices Sonia Sotomayor and Elena Kagan also signed, observing that “the administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to do: It took action to address COVID-19’s continuing threat in those spaces.”
Each of these options—states, Congress, or OSHA—arguably sounds reasonable. The problem is that the Court didn’t acknowledge that in not choosing OSHA, it wasn’t actually choosing states or Congress. It picked itself. In doing so, the Court did not adhere to the confines of its own role under Article III to resolve “cases” and “controversies” between discrete parties. It instead carved out its very own exception to its very own ban on OSHA vaccine mandates, as follows: “Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID-19 virus.”
This language smacks of legislating, not judging. As to what constitutes a “special danger,” “particular features,” or “targeted regulations” that would save an OSHA vaccine mandate from the Supreme Court’s wrath, it’s anyone’s guess. Congress didn’t use any of these phrases in the operative portion of the OSH Act.
The kicker is that the Supreme Court is actually the worst of the four options when it comes to creating the country’s vaccine policy. Regular people can’t file comments with the Court on a proposed ruling and thereby put their views before the decision maker, as it can when an agency finalizes a regulation after a process known as “notice and comment” decision making. Nor can voters lobby Supreme Court justices for favorable policies as they can, at least in theory, with elected members of Congress. Unlike with legislation, moreover, there’s no way for the regulated community or those affected to know whether these “lawmakers” in robes would condone a revised vaccine regulation, other than for OSHA to enact a new one and litigate it all the way to the top for a stamp of approval. When judges—rather than Congress or administrative agencies—task themselves with filling in the blanks inevitably left in legislation, the people have little guidance in the interim.
This is precisely why Breyer closed his opinion with the same question that opened Gorsuch’s: “Underlying everything else in this dispute is a single, simple question: Who decides how much protection, and of what kind, American workers need from COVID-19?”
The majority effectively answered this question by anointing itself in charge.
Breyer saw it that way too. And he didn’t like it: “And then, there is this Court. Its Members are elected by, and accountable to, no one. And we lack the background, competence, and expertise to assess workplace health and safety issues. When we are wise, we know enough to defer on matters like this one. When we are wise, we know not to displace the judgments of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise.”
Welcome to the new America, friends. Where the new boss of all bosses is not a king, or a president, or even Congress. It’s five or more elite legal minds with more unaccountable power than anyone—and with very strong opinions about what the law should be.