Demonstrators gather outside the Supreme Court in Washington on Wednesday, June 23, 2021. | Caroline Brehman/CQ-Roll Call, Inc via Getty Images
The Court doesn’t just threaten the public health, it threatens democracy itself.
Governments make choices that shape millions of lives. Workers and businesses are taxed to provide health care to the elderly and to the least fortunate. Men and women are incarcerated or even killed for crimes defined by the state. Wars are fought. Refugees are given a place of safety or turned away at the border.
If you believe in democracy, such power is justified only because it flows from the will of the people. “Governments,” the United States declared in its formational document, “are instituted among Men, deriving their just powers from the consent of the governed.” The premise of any democratic republic is that there are some decisions that must be made collectively, and that these decisions are legitimate because they are made by elected officials.
On Friday, the Supreme Court will hear two sets of cases that test the justices’ commitment to the idea that the right to govern flows from the will of the people, and both involve challenges to President Joe Biden’s efforts to encourage vaccination against Covid-19.
The first bloc of cases, which is likely to be consolidated under the case name Biden v. Missouri, challenges a federal rule requiring nearly all health care workers to become vaccinated. The second bloc, which is likely to be consolidated under the name NFIB v. Department of Labor, challenges a rule requiring workers at companies with 100 or more employees to either get vaccinated or be regularly tested for Covid-19.
Even on their faces, the stakes in Missouri and NFIB are enormous. These cases ask what steps the United States can realistically take to quell the spread of a disease that has already killed more than 820,000 Americans. But the full stakes in these cases are even higher.
Someone has to decide how the United States will respond to a global pandemic, and the Biden administration’s argument essentially boils down to a case for democracy. An elected Congress authorized the executive branch to take certain steps to encourage vaccination, and Joe Biden was elected to lead that branch. So that means that President Biden and his duly appointed subordinates get to make difficult decisions, even if some Americans don’t like those decisions.
The parties challenging Biden’s policies, meanwhile, effectively argue that the Supreme Court should decide America’s vaccination policy. They couch their arguments in arcane legal doctrines, with weighty-sounding names like the “Major Questions Doctrine” or “nondelegation,” But these doctrines are vague — so vague that they are easily manipulated by justices who disagree with the Biden administration’s policies and wish to conceal their desire to halt those policies behind a patina of legal reasoning.
I don’t want to minimize the significance of the policies at issue in Missouri and NFIB. In creating these policies, the Biden administration determined that its fundamental duty to preserve human life overrides many individuals’ interest in refusing medical treatment. This is a weighty decision, placing the collective health of the nation before the individual liberties of many of its citizens.
But the Biden administration estimates that its two vaccine regulations will save hundreds or even thousands of lives every month. And it decided that saving those lives is worth requiring some Americans to do something they don’t want to do. This decision is no more significant than many of the decisions governments make — to send troops to a distant conflict, to tax and to spend that money in service of a nation’s people, to save lives, or to take them. This is what governments do.
Again, someone needs to decide what America’s vaccination policy will be. It will either be made by the man chosen by the American people, or the Supreme Court will wrest that decision away from him and give it to themselves.
Administrative law, briefly explained
The specific legal questions in Missouri and NFIB concern Congress’s power to delegate authority over public health matters to the executive branch, and the Biden administration’s power to wield this authority against the pandemic.
In the Missouri case, Congress passed a law giving the Secretary of Health and Human Services broad authority to set rules for hospitals and other health providers that accept Medicare and Medicaid funds. No health provider is required to take these funds. But if they do, such providers are bound by rules that the Secretary “finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”
Meanwhile, in NFIB, Congress enacted the Occupational Safety and Health Act (OSH Act), which gives a similarly named agency — the Occupational Safety and Health Administration (OSHA) — sweeping authority to protect workers from health hazards. Among other things, Congress gave OSHA the power to issue binding rules that provide “medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.”
Ordinarily, OSHA must complete a lumbering process that requires years of study and consulting with employers before it can hand down a new rule, but a provision of the OSH Act permits OSHA to issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” and that such a standard is “necessary to protect employees from such danger.”
The striking thing about these statutes is that they are quite open-ended. Congress could not possibly have anticipated every single problem that could threaten the health and safety of Medicare and Medicaid patients, or that could endanger workers’ health. So the men and women elected to Congress chose to give the power to respond to these unforeseen problems to federal agency heads, who are themselves appointed by an elected president.
As I’ve written, there are plausible, but far from airtight, arguments that the broader OSHA regulation exceeds that agency’s power to issue an emergency temporary standard. But the Court has historically warned judges against being too quick to embrace such arguments. As Judge Julia Gibbons wrote in a lower court opinion explaining why she voted to uphold the OSHA regulation, “reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policymaking responsibilities.”
That’s in line with a foundational principle the Court laid out in Mistretta v. United States (1989), that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Other cases urged the judiciary to defer to federal agencies even when the statute authorizing an agency was unclear about whether a specific regulation was permitted. The reasons for this deference, as the Court explained in Chevron v. Natural Resources Defense Council (1984), were two-fold.
“Judges,” Justice John Paul Stevens wrote in Chevron, “are not experts” in the complex policy areas where agencies regulate. So they are more likely to make unwise decisions if allowed to substitute their own judgment for those of an agency leader.
Additionally, “while agencies are not directly accountable to the people, the Chief Executive is.” Thus, “it is entirely appropriate for this political branch of the Government to make such policy choices.” If an agency makes a bad decision, the voters can punish the president for that decision at the next election. But if a court does so, the public has no recourse.
But decisions like Mistretta and Chevron are out of favor with the current Supreme Court. Beginning in the Obama administration, the conservative Federalist Society grew obsessed with proposals to strip federal agencies of their ability to regulate. Its annual convention became a showcase of ideas to disempower these agencies, many of them championed by conservative, then-lower court judges like Neil Gorsuch and Brett Kavanaugh.
Not long after Gorsuch and Kavanaugh became justices, the Supreme Court signaled that it had five votes to gut decisions like Mistretta and Chevron and to give the judiciary a sweeping veto power over any federal regulation.
And now the parties challenging the Biden administration’s vaccination policies ask the justices to exercise that veto power in order to kill those policies.
How vague legal doctrines become a weapon wielded by judges
As the Supreme Court grew more hostile to the earlier era’s deferential, pro-democracy approach, it invented new doctrines or revived long-dead ones that could be used to block rules that the justices do not like.
The “Nondelegation Doctrine,” for example, claims that there are strict constitutional limits on Congress’s power to delegate power to federal agencies. This doctrine would come as a huge surprise to the framers — as law professors Julian Davis Mortenson and Nicholas Bagley explain in an important paper, the first Congress gave federal agencies expansive authority to govern federal territories, to issue patents, to regulate trade with Native Americans, and to exercise other broad powers. But at least five of the current justices nonetheless support the Nondelegation Doctrine.
According to Justice Gorsuch, nondelegation requires judges to strike down any federal law delegating authority to a federal agency if that law does not put “forth standards ‘sufficiently definite and precise to enable Congress, the courts, and the public to ascertain’ whether Congress’s guidance has been followed.”
Similarly, a handful of mostly recent decisions rest on the “Major Questions Doctrine,” a judicially created doctrine that limits federal agencies’ power to solve significant problems. As Justice Antonin Scalia wrote in Utility Air Regulatory Group v. EPA (2014), “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
The striking thing about both of these doctrines is that, like the OSH Act and the federal law governing Medicare regulations, they are quite open-ended. The Court has never adequately explained just how “definite and precise” a statute must be to survive contact with the justices. Or what constitutes a matter of “economic and political significance.” Or how “clearly” Congress must “speak” if it wants to delegate such matters to a federal agency. The doctrines are vague enough to justify striking down — or upholding — nearly any federal regulation.
But, unlike the OSH Act and the Medicare statute, neither of these doctrines have any democratic legitimacy. They cannot be found in any statute, and Gorsuch relies only on dubious history and vague provisions of the Constitution in his opinion advocating for nondelegation.
The thrust of decisions like Chevron and Mistretta is that, when judges are unsure how to resolve a difficult legal question, they should err on the side of the elected branches. Good governance requires expertise, and it requires government officials to make difficult moral decisions. So we should want these decisions to be made by experts who are accountable to an elected official.
Doctrines like nondelegation and major questions, by contrast, turn this reasoning on its head. They presume that an elected Congress cannot be trusted to delegate important powers to expert agencies, and that an unelected judiciary must step in to prevent those agencies from making important decisions.
This is not democracy. It is a decision to replace the judgment of men and women elected to make life-and-death decisions with the views of a few unelected lawyers.