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Putting the vaccine mandate on ice

Erin Hawley | The Supreme Court rules against a federal agency’s sweeping power grab


Grocery store owner Brandon Trosclair, who challenged the Biden administration’s vaccine mandate, outside the U.S. Supreme Court last week Associated Press/Photo by Evan Vucci

Putting the vaccine mandate on ice
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In a significant win for limited government, separation of powers principles, and the constitutional design, the U.S. Supreme Court yesterday rejected the Biden administration’s vaccine-or-test mandate on large businesses. In an unsigned per curiam opinion for six justices, the high court put the administration’s sweeping mandate on ice.

At issue in the case was an extravagant assertion of federal power whereby the Occupational Safety and Health Administration claimed the authority to issue an emergency rule requiring the employees of large employers to be vaccinated from COVID-19 or test weekly at personal expense. Otherwise, an employee would lose their job. As the Supreme Court put it, OSHA’s mandate was no “everyday exercise of federal power” but rather “a significant encroachment into the lives—and health” of 84 million American workers.

The problem is that OSHA is an administrative agency. And as the court explained, agencies “are creatures of statute.” They possess only the power granted to them by Congress. Further, because Article I of the U.S. Constitution gives to Congress alone the power to make law, the Supreme Court requires that Congress delegate regulatory authority to an agency. And when the stakes are higher and an agency purports to exercise significant economic and political powers, of which a nationwide vaccine-or-test mandate affecting nearly two-thirds of the nation’s workforce surely counts, constitutional principles require even more. In such circumstances, Congress must have clearly authorized such significant agency authority.

This so-called clear statement rule enforces constitutional government. It ensures that the power to make law remains with Congress—not unaccountable administrative bureaucrats. The rule ensures that the people’s elected representatives are at the helm, especially on important political, social, and economic issues.

One problem with the vaccine-or-test mandate is that Congress has not given OSHA such broad authority. And because a nationwide mandate is a significant political and economic issue, OSHA was required to point to express congressional authorization. This it could not do. OSHA has no roving authority to regulate general health. Rather, Congress has empowered OSHA only to set workplace safety standards. It is thus unsurprising that OSHA has never before required nationwide vaccinations. Neither has any other administrative agency or Congress—and, indeed, health and safety regulations are ordinarily exercised by the states as opposed to the federal government.

The court’s decision rejecting the business vaccinate-or-test mandate is a significant win for the separation of powers and the rule of law.

To make matters worse, in enacting its vaccine-or-test mandate the Biden administration invoked OSHA’s emergency powers, thus bypassing the ordinary procedural protections of notice and comment rulemaking.

According to the Supreme Court, the business mandate is unlawful because OSHA has no statutory authority to issue the mandate since COVID-19 is not an occupational hazard for most workers. It is no different from other day-to-day dangers like crime and other transmissible illnesses. At the end of the day, the Supreme Court blocked the Biden administration’s vaccine-or-test mandate because Congress has not itself required nationwide inoculation and because the Constitution puts limits on the power of federal agencies. As the court explained, to permit an administrative agency to regulate the daily hazards of American life, simply because most Americans have jobs, would cede enormous authority to an unaccountable administrative agency without clear congressional authorization. And that is a scary proposition.

In a more limited companion case, however, the Supreme Court sided with the Biden administration in a 5-4 decision upholding a vaccine requirement for healthcare workers. The Department of Health and Human Services regulation requires that certain medical facilities, to receive federal Medicare and Medicaid funding, ensure that their employees—unless exempt for religious or medical reasons—be vaccinated against COVID–19. Four justices dissented arguing that HHS had not shown that Congress had authorized it to impose a vaccine mandate, even one restricted to healthcare workers.

Ultimately, the court’s decision rejecting the business vaccinate-or-test mandate is a significant win for the separation of powers and the rule of law.

If administrative agencies seek to regulate the daily lives and liberty of some 80 million Americans in such a significant way, they must at least point to congressional authorization. A national emergency does not set administrative agencies free from the requirement that the people’s representatives have a say in the decisions that affect ordinary Americans on a daily basis.


Erin Hawley

Erin Hawley is a wife, mom of three, senior appellate counsel at Alliance Defending Freedom, and former law professor.

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Tim Miller

Now it is up to us to use our freedom responsibly.

Big Jim

Hey government, leave us alone!

DPEN5749

Hoorah!