Thursday’s Supreme Court decision blocking the federal government’s mandate that large businesses require their employees to be vaccinated or tested is seen as a blow to the Biden administration’s efforts to combat the Covid-19 pandemic. This is certainly the case, despite a split court ruling allowing the same mandate to remain in place for healthcare facilities that accept money under the Social Security Act.
But the biggest loss as a result of these decisions is not the president’s reputation as a problem solver, but decades of constitutionally established separation of power between the legislative and executive branches of government. And the winner, if that’s the right term, is the Supreme Court itself, which has carried out an unprecedented power grab and disguised it as an act of judicial restraint.
How did the conservative 6-3 majority of the court handle it?
Here is a key passage from the unsigned court opinion: “While Covid-19 is a risk that occurs in many workplaces, it is not professional danger in the majority. Covid-19 can and does spread at home, in schools, during sporting events and wherever people gather.” Insofar as charter gives the Occupational Safety and Health Administration authority to enact standards “reasonably necessary or appropriate to ensure safe or healthy working conditions”. Work“, he reasoned, and Covid-19 is not just spreading in the workplace, OSHA acted outside of its powers. The “vaccine or test” mandate “does not discriminate by industry or risk of exposure to Covid-19” and therefore cannot be secured. “[M]Most lifeguards and linemen are subject to the same rules as medics and meat packers, for example.
The logical flaw in most reasoning is that this line art is not required by the actual 1970 law (the Occupational Safety and Health Act) that established OSHA. Back in 1979, the Court held that Department of Industrial Union v. American Petroleum Institute that OSHA has “broad authority … to promulgate various kinds of standards.” Judge Stephen Breuer, in his dissenting opinion, thus explained: “The standard is at the heart of the agency’s mission to ‘protect employees’ from ‘serious danger’ posed by ‘new hazards’ or exposure to harmful agents,” as stated in relevant part Law on labor protection.
What the majority really say is that they don’t like how much power Congress gave OSHA the first. The question of whether Congress can delegate its legislative powers to the executive branch has been debated for decades. But since the 1930s, the court has mostly allowed by Congress give agencies the power to rule-making under Article I’s “Necessary and Appropriate” clause, based in part on the theory that courts lack the experience that agencies have. Moreover, even though they are not elected, the employees of the agency are subordinate to whoever is an accountable to voters: President.
This is known as the delegation of legislative power. Instead of retaining the legislature, Congress empowers the executive branch to fill the inevitable gaps it leaves in legislation. When the executive branch responds, the laws passed are often referred to as “regulations”. But they operate with almost the same force of law as an act of Congress itself. Legal criticism of the practice of delegating legislative power to agencies fell on deaf ears in the Supreme Court for nearly a century. Only a handful of court decisions during the New Deal era overturned Congress’ decisions to delegate legislative powers. in accordance with the so-called non-delegation doctrine.
The court’s majority opinion suggests that this Supreme Court is prepared to strike down an undisclosed segment of federal regulations that do not follow clear, detailed Congressional authority. And more worryingly, the court’s conservatives appear to have determined that Congress can only do so if the subject matter of the law affects what the court considers “the main issue,” a vague and vague term that has no textual support. in the Constitution. Since our polarized Congress is remarkably incompetent when it comes to substantive policy, this does not bode well for the country’s legislative needs.
Thus, there is a looming Supreme Court threat to the viability of federal regulations as the primary vehicle for passing laws that cover virtually every aspect of American life, from workplace safety and environmental protection to financial regulation and the national welfare of children. And these government officials are not elected and cannot lose their jobs as a result of voting. If a new public health threat arises that affects millions of workers, then Congress is better off foreseeing the specific threat in legislation allowing the agency to deal with it, or coming together and enacting actual Article I emergency legislation. Of course. , the horrors and suspense of Covid-19 belie the feasibility of this option. Essentially, the court is saying, “If the states don’t step in to fight the next epic pandemic, you guys are on your own.”
Judge Neil Gorsuch’s concurring opinion expounds the conservative theory well, even linking it directly to the doctrine of non-delegation. When the federal government is in operation, he explained, “[i]t must… act in accordance with the constitutional separation of powers. And when it comes to that obligation, this Court has established at least one hard rule. “We expect the Congress to speak clearly” if it wishes to entrust the executive body with decisions of “tremendous economic and political significance.” the era of modern conservative lawyers dominating the court. Gorsuch notes that “[w]Sometimes we call this the doctrine of the main questions.
To be clear, the so-called fundamental questions doctrine was created by the Supreme Court. This is not in the Constitution. But Gorsuch added that “the core issues doctrine is closely related to what is sometimes called the non-delegation doctrine.” Wolf in sheep’s clothing.
Since 1984, the operational doctrine of the revision of departmental rules has not been the doctrine of the main issues. Instead, it is set forth in a landmark case titled Chevron, USA Inc. v. Natural Resources Defense Council, Inc. In accordance with this decision, the Supreme Court waived the power to rewrite rules by writ, instead holding that as long as Congress gives the agency the power to rule by law, the agency can reasonably exercise its discretion to fill in the gaps in the law. publishing the rules. . If the agency does so, the courts must rely on the policy agency’s decisions, on the theory that they have more substantial experience than federal judges. For example, the public is undoubtedly better served by the Nuclear Regulatory Commission’s experts drafting reactor safety rules than by unelected generalists in black robes.
The Conservative Fundamental Questions Doctrine invests that power with judicial power, devolving it ultimately to Supreme Court justices, who can now decide what laws they like and what they don’t, with little to no oversight or restraint. This is tantamount to a constitutional seizure of power. But not agencies. This is the Supreme Court itself.