Why We Saw a Split Decision on the Biden Vaccine Mandates

I ’m sure the thing you most desire at the moment must be more analysis from the guy who, after carefully studying the Biden mandate cases for a couple of weeks, just got finished telling you we probably wouldn’t get a decision for another week or three. Yes, yes, I know: The ink was not yet dry on my post when the Supreme Court issued its two rulings.

But at least I was half right, and, though off on the timing, I did not misguide you on the important thing — the substance. We got the split decision that, a couple of days ago, I warned we might get: The Court torpedoed the Occupational Safety and Health Administration (OSHA) mandate in a 6–3 ruling, but by a bare 5–4 margin upheld the Department of Health and Human Services (HHS) mandate (involving 15 categories of entities that do business with CMS — HHS’s Centers for Medicare and Medicaid Services).

Still, I am not going up in a balloon about that. The Constitution was my basis for thinking the Court could split on the mandates: OSHA is rooted in the Commerce Clause; HHS is rooted in Congress’s power to spend in furtherance of the general welfare.

Thus, my thinking went, OSHA was a heavier lift for the Biden administration because it had to show that the president’s mandate involved some form of interstate commerce. Coercing people to get vaccinated in order to work (i.e., to engage against their will in a non-commercial activity incidentally related to commerce) seemed reminiscent of coercing them to buy health insurance (i.e., to engage against their will in a commercial transaction), which the Court ruled was not a proper exercise of Congress’s commerce power in the first Obamacare case.

By contrast, the spending power enables the federal government to mandate actions it would otherwise be impotent to mandate, because it is permitted to attach strings to government spending. It’s more like a contract: If you don’t want the burden they want to impose, you don’t have to take the benefit of the bargain. Constitutionally speaking, spending power gives the government a somewhat wider berth than the Commerce Clause, even allowing that the latter has been very elastically construed.

In the event, though, the Court did not rely on these distinctions in deciding the two cases differently. Instead, the decisive constitutional principle was basic separation of powers: The executive may not exercise powers given to Congress unless Congress has authorized the exercise by statute.

In the OSHA case (National Federation of Independent Business v. Department of Labor), the more conservative majority reasoned that Congress had not authorized the agency to issue a vaccine mandate. In the HHS case (Biden v. Missouri), the more progressive majority (i.e., the Court’s three reliable progressives — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — joined by two “swing justices,” Chief Justice John Roberts and Justice Brett Kavanaugh) concluded that Congress’s hodgepodge of statutes had just enough verbiage in them about “promoting health and safety” to rationalize a vaccine mandate.

The salient aspect of the OSHA case, as the majority explained, is found in the name of the agency itself. What Congress created in 1970 was a bureaucracy concerned with occupational health and safety — with hazards that are directly related to the workplace. As I detailed in an analysis of last Friday’s argument, a significant argument against the mandate was that it treats the “workplace as a pretext — i.e., the risks [from Covid] are not peculiar to the workplace; rather, Covid is a ubiquitous threat that all of us face just by virtue of getting up in the morning; it only incidentally affects us in the workplace because there is no escaping it anyplace.”

Today’s per curiam (i.e., unsigned) majority opinion put it this way:

Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. . . . Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization. [Emphasis in original.]

By contrast, the HHS ruling presents two different visions of what Congress enacted. To my mind (not surprisingly, I suppose), the conservative dissenters have the better of the argument.

The per curiam majority opinion highlights a statutory provision (which the majority concedes in a footnote applies only to hospitals, not to other relevant CMS programs) that permits HHS to impose conditions on federal funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services.” Obviously, this is not an explicit grant of authority to require vaccination.

Consequently, the five justices try to pad the language by insisting that Medicare and Medicaid have always required participants to “address the safe and effective provision of healthcare” and have “routinely” imposed conditions on health-care workers themselves. The justices also emphasize that “healthcare workers and public-health organizations overwhelmingly support the [HHS] Secretary’s rule”; but that, we must observe, has nothing to do with whether Congress has actually provided the secretary with authority to impose the rule, nor does it address whether people who object to the vaccine — to the invasion of their bodily integrity — have good reasons to oppose the rule regardless of who supports it. (Why do I think that if health-care workers and public-health organizations suddenly opposed abortion, most of the justices in the HHS majority would dismiss their position as an intrusion on the decision by a woman and her doctor on a deeply personal medical matter?)

Justice Clarence Thomas’s dissent, joined by Justices Samuel Alito, Neil Gorsuch, and Amy Coney Barrett, points out that the main statutory authority for HHS/CMS merely permits them to administer the health-care programs. That is, they are given a ministerial task, not broad authority to impose substantive medical requirements. Moreover, besides not clearly authorizing a vaccination requirement, the “health and safety” language on which the majority relies does not even apply to many of the programs implicated by the mandate — a point that Justice Barrett emphasized at last week’s oral argument.

Perhaps most significantly, Justice Thomas stressed that the Court has only recently held in Alabama Association of Realtors v. Department of Health and Human Services — the case in which it invalidated President Biden’s eviction-moratorium mandate — that (a) “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance”; and (b) it similarly expects Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” In the HHS mandate, the agency is taking an action that has these ground-shifting effects, even though Congress has not authorized that action in clear language.

That, manifestly, is the main issue in both of the mandate cases. Yet Roberts and Kavanaugh voted with the progressives in the HHS case as if it weren’t an issue, while voting with the conservatives in the OSHA ruling that relied on its being the main issue. This inconsistency may help the swing justices try to assuage media-Democrat critics of the (ostensibly) conservative-leaning Court that it is not “partisan,” that the justices can split the baby just like “moderate” legislators do. But the Court’s role is to say what the law is, not say what pleases the commentariat. Here, the law is that an executive agency doesn’t get to do things that Congress hasn’t authorized — particularly things of huge consequence.

This last point underscores a bigger disappointment for constitutional conservatives in what on balance (and as our editorial argues) is a victory for separation-of-powers principles. There is no hint in either of the two majority opinions that there are effective limits on what the federal government may do. The justices are simply saying that Congress must be clear in its enabling language.

If you perceive an implication that the Court has so expanded federal power — under the Commerce Clause and the warrant to spend in promotion of the general welfare — that the concept of federalism has lost its vitality, you’re not wrong.