On Thursday, the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.
The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.
There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.
But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.
The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.
But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!
What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.
Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the majority opinion notes.
But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including “risks of fire, faulty electrical installations, and inadequate emergency exits.” It’s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives — that a vaccination “cannot be undone at the end of the workday,” unlike the donning of fire-safety gear — applies with equal force to both the OSHA rule and the narrow health worker’s rule that the Court refused to block. Doctors’ vaccinations can’t be undone any more than an office worker’s can be.
The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.
In the past, when the Court was unable to come up with principled ways to separate good rules from bad ones, it deferred to the federal agencies that promulgated those rules. The Court reasoned that it is better to have policy decisions made by expert agencies that are accountable to an elected president than to have purely discretionary decisions made by unelected judges with no relevant expertise.
But the one thing that is apparent from NFIB and Missouri is that this age of deference is over. The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.
The Court is fabricating legal doctrines that appear in neither statute nor Constitution
To understand the two vaccination cases, it’s helpful to start with the specific statutory language the Biden administration relied upon when it issued both rules.
In the NFIB case, a federal law that generally requires OSHA to go through an arduous process to approve new workplace regulations also gives the agency the power to devise an “emergency temporary standard.” It can do so to protect workers from “grave danger from exposure to substances or agents determined to be toxic or physically harmful” if such a standard is “necessary to protect employees from such danger.”
Meanwhile, in the Missouri case, a different federal law instructs the Centers for Medicare and Medicaid Services (CMS) to issue rules that it “finds necessary in the interest of the health and safety of individuals who are furnished services” in institutions that accept Medicare or Medicaid funding (a category that includes most health providers and pretty much all hospitals and other major providers).
There are striking similarities between these two statutes. Both use open-ended language, delegating powers that could be wielded in a wide variety of circumstances to protect against a wide variety of health threats. And both also state that the relevant federal agencies should only issue rules that are “necessary” to protect against such threats.
And yet the Court analyzes these two very similar statutes in strikingly different ways.
As mentioned above, NFIB relies heavily on the so-called major questions doctrine, a judicially created doctrine that is not mentioned in the Constitution or in any other federal law, and that sometimes limits federal agencies’ power to issue especially consequential regulations. “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,” the Court declares in NFIB, quoting from a decision last August that struck down a moratorium on evictions.
Historically, this doctrine has been used primarily to help the Court interpret vague or ambiguous statutes delegating regulatory power to a federal agency. When it is unclear whether a particularly ambitious regulation falls within an agency’s statutory authority, the Court would sometimes err on the side of saying that the regulation is not permitted.
But the issue in NFIB isn’t really that the statute is vague. As the three liberal justices note in a co-authored dissent, the six conservative justices in the majority do “not contest that COVID–19 is a ‘new hazard’ and ‘physically harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.”
Rather, the majority appears to believe that, because OSHA is not engaged in an “everyday exercise of federal power,” the Court must look for reasons to strike its actions down. As mentioned above, the NFIB majority justifies doing so by claiming that OSHA’s authority is limited to the workplace, and the threat of Covid-19 “is untethered, in any causal sense, from the workplace.”
Thus, unlike previous decisions that applied the major questions doctrine only when a statute is vague (that is, if it is unclear whether Congress intended to allow an agency to regulate), NFIB suggests that this doctrine applies to any open-ended statute that gives an agency broad powers. And it applies even if it’s apparent from that statute’s language that Congress intended to give the agency broad, open-ended authority.
That’s a sweeping change. But say we take it at face value, and then look at the decision in Missouri. Under NFIB, the major questions doctrine only applies to matters of “vast economic and political significance.” But the Missouri opinion provides no explanation of why a rule that impacts 10 million workers does not qualify as a question of such significance.
And if the major questions doctrine does apply, then the CMS rule appears to be just as vulnerable to this doctrine as the OSHA rule. If anything, the text of the CMS statute is even more open-ended than the language at issue in NFIB. OSHA’s statute for emergency regulations only permits it to address a “grave danger” and only when that danger arises from a “physically harmful” substance or agent that intrudes upon the workplace. CMS’s statute, by contrast, gives it far more sweeping authority to act in the “interest of the health and safety of individuals” who receive health care in facilities that take Medicare or Medicaid funding.
And yet the major questions doctrine goes unmentioned in the Missouri opinion.
Similarly, in NFIB, the Court swipes at OSHA’s broad rule because, it claims, “OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind.” But in Missouri, the majority opinion concedes that CMS’s “vaccine mandate goes further than what the Secretary has done in the past to implement infection control,” and it also notes that state governments, not CMS, have historically imposed vaccination requirements on health care workers.
The two opinions cannot even agree on the significance of when the two rules were issued. In NFIB, the fact that there was “a 2-month delay” between when President Joe Biden announced that OSHA would issue a rule and when OSHA actually issued the rule is mentioned as a subtle dig against the administration. But in Missouri, the majority has no problem with a two-month delay.
The Missouri opinion, in other words, appears to have been drafted by someone who was blissfully unaware of what the Court had to say in NFIB. The two opinions simply cannot be reconciled. They apply completely different legal rules and make no effort to explain why the analysis in one opinion does not apply in the other.
At best, the Court is unable to keep track of what it is doing. At worst, it appears to have started with the result it wanted in both cases, and then worked backward to come up with some kind of reasoning to justify those outcomes.
The Supreme Court wants to be President Biden’s boss
In fairness, there is some language in the NFIB opinion that the Biden administration might find comforting. Although the Court rejects OSHA’s broad rule, it does indicate that OSHA could issue a narrower rule in some cases. “Where the virus poses a special danger because of the particular features of an employee’s job or workplace,” the Court writes, “targeted regulations are plainly permissible.”
Similarly, NFIB rejects the slash-and-burn approach to curtailing OSHA’s authority that is favored by the very most conservative members of the federal bench. The majority opinion concedes that “Congress has indisputably given OSHA the power to regulate occupational dangers.”
So, small victories: The opinions in NFIB and Missouri suggest that the Court will still permit the Biden administration to govern some of the time. But they also suggest that the Court will exercise a broad veto power over this administration’s regulatory actions.
As Judge Jane Stranch wrote in a lower court opinion backing the OSHA mandate, the major questions doctrine that the Court relies upon to strike that mandate “is hardly a model of clarity, and its precise contours — specifically, what constitutes a question concerning deep economic and political significance — remain undefined.” The same can be said about other legal doctrines (such as one known as “nondelegation”) that the Court has also floated as justification to strike down federal regulations in recent cases.
The elevation of these doctrines is dangerous. When courts hand down such vague and open-ended rules, they effectively transfer power to themselves. As the NFIB and Missouri cases show, doctrines like major questions are hard to apply in a principled way, and very easy to apply selectively. And they can justify striking down nearly any significant rule that a majority of the justices dislike.
The justices, in other words, have set themselves up as the final censors of any regulatory action. The Biden administration may still propose new rules, but those rules are likely to stand only if five justices agree with them.