This could be the start of a major dismantling of the federal government.
About the author: Kimberly Wehle is a law professor at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.
Today, the Supreme Court will hear oral argument in a pair of cases challenging President Joe Biden’s vaccine mandates in two contexts: private workplaces with more than 100 employees and health-care facilities that participate in Medicare and Medicaid.
Ostensibly, these cases are before the Court to resolve whether a president can even temporarily require vaccine and testing protocols during a pandemic to protect public health. But the questions the Court may examine are much more sweeping, with enormous implications for the future of the executive branch and the massive swaths of American life it regulates.
Article I of the Constitution establishes that “all legislative Powers herein granted shall be vested in a Congress of the United States,” but it doesn’t define “legislative powers” except to suggest that they are something other than the nominal, undefined powers granted to the other two branches of the federal government—the president’s “executive Power” under Article II and the federal courts’ “judicial Power” under Article III. As a practical matter, legislative or “lawmaking” power might be defined as writing rules that operate prospectively to constrain conduct. “Thou shalt not discriminate on the basis of disability,” for example, is a law that Congress effectively created in 1990 with the Americans With Disabilities Act.
Congress likewise made laws with the Occupational Safety and Health Act of 1970 (OSH Act) and Titles VIII and XIX of the Social Security Act, which in 1965 established Medicare as a federal health-insurance program for individuals ages 65 and older and Medicaid for individuals with a low income. This pair of statutes provides the legal grounding for Biden’s vaccine-or-test mandates.
The crucial legal question in the cases now before the Supreme Court is less about whether Biden properly exercised the authority granted to him in these acts than whether Congress acted constitutionally in passing along the authority to the executive branch to make such rules in the first place. If the Supreme Court’s conservative majority decides that that delegation was improper (a position that certain justices appear to have endorsed), a cascade of deregulation could begin, reversible only with a formal amendment to the Constitution or a new majority on the Court, both of which are all but impossible in the foreseeable future.
In 1965, Congress charged an executive-branch agency—the Department of Health, Education, and Welfare (renamed the Department of Health and Human Services, or HHS, in 1979)—with the task of implementing the Medicare and Medicaid programs. In accordance with the Social Security Act, medical facilities that receive Medicaid or Medicare funding, including hospitals, skilled-nursing facilities, and hospices, must enter into an agreement with HHS and meet specified conditions of participation—such as vowing not to discriminate against eligible patients, allowing unannounced on-site inspections, and furnishing fingerprint-based criminal-background checks on request. Congress also empowered HHS to take steps to ensure that providers adequately protect the health and safety of their patients. HHS accordingly promulgated regulations that, among other things, address the qualifications of staff, the conditions of the facilities, and standards for the prevention and control of infections. Pursuant to this authority, on November 5 Biden established the vaccine mandate for medical personnel in Medicare- or Medicaid-funded facilities.
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A similar delegation of power to the executive branch is what enabled Biden’s vaccine-or-test mandate for businesses with 100 or more employees. In 1970, Congress authorized the secretary of labor “to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce,” having found “that personal injuries and illnesses arising out of work situations impose a substantial burden … in terms of lost production, wage loss, medical expenses, and disability compensation payments.” The Occupational Safety and Health Administration (OSHA) is the part of the Labor Department charged with protecting worker safety and health, “by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems” in areas including sanitation, air contaminants, hazardous materials, fire protection, and personal protective equipment. OSHA, also on November 5, issued a rule—which it called an “emergency temporary standard”—requiring large employers to “develop, implement, and enforce a mandatory COVID-19 vaccination policy, [or] instead adopt a policy requiring employees to … elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”
The government’s power to mandate vaccines in the face of individual recipients’ due process and other constitutional objections traces back to the Supreme Court’s 1905 decision in Jacobson v. Massachusetts, and it is unlikely to be revisited in these particular cases. What is instead potentially at stake is Congress’s authority to hand off regulatory power to unelected executive-branch-agency personnel writ large, which has long been a point of debate among lawyers, judges, and academics. About the OSH Act, the legal scholar Robert D. Moran commented in 1974:
It is doubtful that Congress has ever enacted a broader grant of lawmaking authority to any officer of the executive branch [and] difficult to conceive of anything that does not affect the safety and health of working people; the hours he works, his diet, his state of mind as he leaves the job for each day, and even his sex life . . . Some innovative future Secretary of Labor who fancied himself a benevolent incarnation of the “Big Brother” of George Orwell’s 1984 could approach that status merely by using the existing authority for job safety regulation.
But these objections notwithstanding, for more than 85 years Congress has routinely given agencies the authority to make laws—regulations, technically, but they function as laws—and the Supreme Court has consistently refused to interfere.
How is it that agencies continue to make such “laws” when the Constitution expressly gives Congress—not the president—that power?
This precise question came up in a series of constitutional challenges attacking portions of President Franklin D. Roosevelt’s New Deal programs. Among other things, the National Industrial Recovery Act of 1933 authorized the president to approve “codes of fair competition” affecting the poultry industry and enabled the executive branch to pass rules prohibiting the interstate transportation of petroleum products. In 1935, the Supreme Court issued two decisions striking down the statute’s handoffs of lawmaking power to the president, explaining in A. L. A. Schechter Poultry Corporation v. United States that “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.” Presidents are charged with executing the law, not creating it. According to the Court in Panama Refining Company v. Ryan, the problem with the statute was that “Congress left the matter to the President without standard or rule, to be dealt with as he pleased,” thus permitting “such a breadth of authorized action as essentially to commit to the President the functions of a Legislature, rather than those of an executive or administrative officer.” This legal framework has come to be known as the “non-delegation doctrine”—the idea that Congress cannot delegate its power away.
But following a third decision in 1936, known as Carter v. Carter Coal Company, in which the Court held that Congress had violated the due-process clause of the Fifth Amendment by delegating legislative authority to a private industry group of coal producers and miners, the non-delegation doctrine was effectively left for dead. In 1943, in a case called National Broadcasting Company v. United States, the Court rejected a non-delegation challenge to a statute allowing the Federal Communications Commission to allocate broadcast licenses in a manner that generically serves “the public interest, convenience, and necessity.” Nowadays, therefore, so long as Congress includes in a law an “intelligible principle” to guide an agency, it is constitutionally permissible. This was also the prevailing test prior to the New Deal cases, but it has proved to be meaningless as a constraint on delegations of lawmaking power. We live in the world that flowed from that shift in legal doctrine: Executive-branch agencies dot Washington, D.C., and the thousands of rules and regulations they issue each year—which by the end of 2021 numbered 19 for every one law passed by Congress—control countless aspects of American life and the economy.
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Which is why the vaccine-mandate cases are such a huge deal. If Congress is hindered in its ability to employ agencies to fill in the details of its broad mandates, life in the United States could change dramatically. Agencies make rules and regulations affecting stock markets, consumer-product safety, the use and trafficking of firearms, environmental protection, workplace discrimination, agriculture, aviation, radio and television communications, financial institutions, federal elections, natural gas and electricity, the construction and maintenance of highways, imports and exports, human and veterinary drugs, and even the licensing and inspection of nuclear-power plants.
The legality of the OSHA vaccine-or-test rule has already gone before two U.S. courts of appeal—the Fifth Circuit, which struck it down and halted its enforcement, and the Sixth Circuit, which ruled the other way, upholding Biden’s authority to protect the safety and health of employees as “hardly limited to ‘hard hats and safety goggles.’” The Sixth Circuit reasoned that, “having been charged by the Act with creating such health-based standards, it makes sense that OSHA’s authority contemplates the use of medical exams and vaccinations as tools in its arsenal.”
Compare this reasoning with the ideologically tinged opinion of the Fifth Circuit that OSHA’s vaccine mandate “likely exceeds the federal government’s authority under the Commerce Clause because it regulates noneconomic activity that falls squarely within the States’ police power.” According to the trio of federal judges who issued that decision, two of whom were appointed by Donald Trump, the Constitution “does not grant Congress the power” set forth in the OSH Act—let alone enable Congress to delegate it to OSHA. In their view, only the states have a “constitutionally reserved police power over public health policy.”
The Fifth Circuit went out on a legal limb here. The Supreme Court has long upheld agencies’ regulatory power and, indeed, demanded judicial deference to it, in part based on the rationale that the 535 members of Congress don’t collectively have the broad and complex expertise required to address all of the country’s legislative needs, and that unelected judges should not be the ones who fill in legislative blanks.
If the three Trump appointees on the Supreme Court agree with the Fifth Circuit panel, then the American economy could be in for an unfathomable shock. If only Congress can pass laws, then thousands of federal laws known as “regulations” could either become immediately unconstitutional or be read so narrowly by courts that they become ineffective.
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To be sure, the technical question before the Court is whether a stay of the mandates is appropriate—not necessarily whether to dismantle Congress’s underlying authority to delegate lawmaking power to HHS and OSHA. It’s also conceivable that the Court could narrowly look only at whether Biden acted within the scope of the power delegated by Congress—not at whether the delegation is itself constitutional.
Nonetheless, the tea leaves suggest that the administrative bureaucracy is in for an overhaul with this Supreme Court majority. Justice Clarence Thomas has taken the position that “certain core functions . . . require the exercise of legislative power that only Congress can perform.” Justice Samuel Alito has similarly emphasized that “the principle that Congress cannot delegate away its vested powers exists to protect liberty.” And Justice Brett Kavanaugh has quietly endorsed Justice Neil Gorsuch’s opinion that Congress cannot delegate to agencies the “authority to decide major policy questions—even if Congress expressly and specifically delegates that authority.”
Nothing in the actual text of Article I distinguishes between “major policy questions” that Congress cannot hand off to agencies and, in Kavanaugh’s words, “less-major or fill-up-the-details decisions” for which Congress, in his view, can invoke agency support. This distinction is relatively new, devised by judges. If the Court uses some version of this concept to constrain Congress’s constitutional authority to delegate lawmaking power to agencies, it would at the same time be aggrandizing its own authority to oversee Congress’s work—a function established in 1803’s Marbury v. Madison that is hardly self-evident in the Constitution’s text.
Once again, it’s fair to say that the political right’s mantra of judicial conservatism may soon stop at the courthouse doors of this Supreme Court. Buckle up.
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