On Friday, the Supreme Court hears two unusual arguments in two pairs of cases about Covid vaccination requirements imposed by the Biden administration. The first, known as National Federation of Independent Business v. Department of Labor, involve consolidated challenges by red states and private businesses to the Occupational Safety and Health Administration’s rule that all large employers require their employees to either be fully vaccinated or regularly tested for Covid. The second, known as Biden v. Missouri, involves the Center for Medicare and Medicaid Services’ requirement that all health care providers participating in Medicare or Medicaid be vaccinated.
A common rhetorical trope is that these challenges are referenda on individual liberty — and on our constitutional right to refuse to be vaccinated.
A common rhetorical trope is that these challenges are referenda on individual liberty — and on our constitutional right to refuse to be vaccinated. But they’re not. In its 1905 decision Jacobson v. Massachusetts, the Supreme Court held that, where the public health requires it, compulsory vaccination does not offend individual rights. Even justices who have been skeptical of other government responses to the Covid pandemic have reaffirmed their support for that ruling — and have repeatedly turned away challenges to private, local and state vaccination requirements on individual liberty grounds.
Instead, the cases are actually about something even more important: the future power of federal administrative agencies to regulate … anything. Consider the OSHA statute: Enacted in 1970, the law specifically authorizes OSHA to reduce workplace health and safety risks posed by “new hazards.” And a separate provision specifically protects religious objections against OSHA rules requiring “medical examination, immunization, or treatment.” As Peter Shane, a law professor at Ohio State University, has pointed out, “It is difficult to see why Congress would worry that the act might need to specify a religious exemption from ‘immunization,’ unless mandatory immunization was a tool within OSHA’s authorized toolbox.”
The CMS statute is even clearer. The Social Security Act, as the 11th Circuit has explained, gives the secretary of Health and Human Services “express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients.” It’s not exactly a stretch to see how requiring that those who work in such facilities be vaccinated would fall precisely within such a standard. Under decades-old principles of administrative law, the authorization of the rules at issue should be fairly straightforward. Whatever the wisdom of the OSHA and CMS rules as policy, they are both based on powerful textual evidence that Congress intended to delegate such policy decisions to these agencies — for better or worse.
But the Supreme Court in recent years has signaled that it intends to upset those principles. Some justices have argued for reducing the deference courts give to agencies when interpreting ambiguous language in the statutes they administer. In another line of cases, the justices have gone even further, suggesting that the entire foundation of modern administrative law — the idea that Congress can ever delegate these kinds of regulatory determinations to executive branch agencies — violates the constitutional separation of powers. Indeed, there now appear to be at least five votes, and perhaps six, to revive the long-dormant “nondelegation doctrine,” and the vaccine mandate cases may provide the perfect cover for doing so.
In other words, the vaccine cases reach a Supreme Court that appears to be on the verge of reining in the ability of federal agencies to regulate any and all private conduct — a trend that has nothing at all to do with the Covid pandemic or the Biden administration’s responses to it.
Conservative and libertarian defenders of these trends typically claim that the existing precedents —allowing Congress to broadly delegate authority to agencies and then deferring to how those agencies interpret those delegations — are anti-democratic. The problem, they argue, is that faceless bureaucrats are making policy choices affecting millions of Americans, even though they were not elected and are not directly accountable to those affected by their decisions.
At first blush, these arguments might even seem persuasive; no one can probably name the assistant secretary of labor for Occupational Safety and Health (who runs OSHA) or the administrator of CMS (a sore point for my father — who ran it from 1993–97). And, at least these days, it may seem just as off-putting to think that government scientists and other technocrats are making major policy choices, rather than elected members of Congress.
But these criticisms collapse upon closer scrutiny. First, at the same time as the Supreme Court has expressed growing skepticism of the power of administrative agencies, it has also dramatically reduced the independence of government bureaucrats vis-à-vis the president — especially in a series of decisions handed down over the last four years. The assistant secretary of labor in charge of OSHA is appointed by the president with the advice and consent of the Senate, and serves at the president’s pleasure. Ditto the administrator of CMS. Both can be fired for any reason, including their refusal to carry out the wishes of the (democratically elected and accountable) chief executive. The idea that many of these agencies have historically been more insulated from popular accountability no longer has the same significance it did as recently as four years ago. That the media (and the president’s critics) so closely associates these vaccine rules with President Joe Biden himself, and not his subordinates, only underscores the point.
To critics of the administrative state, the alternative they hold out is a more active Congress and more direct involvement by the president.
Second, and more significantly, it’s worth making clear what the alternative is. To critics of the administrative state, the alternative they hold out is a more active Congress and more direct involvement by the president. In this reality, Congress would expressly legislate everything from occupational health and safety standards to motor vehicle safety standards to ambient air quality standards to ... well, you get the idea. Of course, everyone understands that, even before we get to the filibuster, such voluminous, micromanaging legislation is practically (and not just politically) unrealistic — just as it’s unrealistic to think that the president has the time or wherewithal to directly regulate by executive order every single concern currently subject to regulation by federal agencies.
In that sense, the real alternative to allowing agencies like OSHA and CMS to make these choices (with presidential backing) is not more democratically accountable regulation; it’s deregulation. And such deregulation would not be the result of a conscious choice by the democratically elected political branches; it would be the unavoidable, if not intended, consequence of rulings by the least accountable branch of them all — the judiciary. That’s what’s really at stake in the vaccine mandate cases — which aren’t about the government’s power to require vaccinations nearly as much as they’re about the judiciary’s power to undo the modern administrative state writ large.