Maybe, maybe not.
Maybe, maybe not.
T he Supreme Court is considering President Biden’s two vaccine mandates — one issued through the Occupational Safety and Health Administration (OSHA), the other through the Department of Health and Human Services (HHS) and its Centers for Medicare and Medicaid Services (CMS). Like most commentators, I’ve been discussing the two as if they were virtually indistinguishable. But there are salient distinctions, and the question is whether they will make a difference: Must the mandates either rise or fall together, or would it be rational to uphold one while invalidating the other?
There are understandable reasons for thinking of them as a unit. The Court, after all, consolidated the mandate cases because they raise many of the same questions. And as I related in an analysis of the cases’ oral arguments on Friday, Chief Justice John Roberts (along with other justices) took note of the administration’s “work-around” strategy (to quote the term Biden’s chief of staff, Ron Klain, must rue having retweeted).
In a nutshell, the president would like to have issued a single federal vaccine mandate. He realized, however, that Congress had not given him such sweeping authority, and on some level, though it runs against his statist grain, he may even have grasped that it’s unclear whether Congress itself has such authority. Because such a decree would thus be politically explosive, the administration is combing through the statute and regulation books to mine — and stretch for all they may be worth — the limited authorities Congress has vested in different administrative agencies. The point is to stitch these sundry authorities into what, effectively, is a single national requirement that unvaccinated people get vaccinated, covering the entire “waterfront” (as Roberts referred to the mandates’ intended sweep).
Nevertheless, the fact that Biden’s two mandates are part of one initiative does not make them mirror images. OSHA and HHS/CMS have different missions, different structures, and different constitutional foundations.
Created in 1970, OSHA is probably the most extreme iteration of that politically progressive era’s presumption that the Commerce Clause had become a negligible limitation on Congress. The federal government, the thinking went, need no longer hesitate to regulate public health and safety matters — even though these have traditionally been state-government concerns due to their essentially intrastate character.
Medicare and Medicaid, by contrast, are huge federal health-care entitlements that HHS oversees through CMS. CMS’s principal job is thus to administer those programs’ funding. Yet — and this is significant for present purposes — Congress in many instances statutorily instructs CMS to be guided by the objective of promoting public health and safety.
Right off the bat, it is easy to spot a key difference in the sources of Biden’s mandates. Unlike the expansive construction of the Commerce Clause that underpins OSHA’s regulations, HHS/CMS’s spending on health-care entitlements is principally justified by an expansive construction of the General Welfare Clause — to oversimplify, an extension of the Supreme Court’s adoption of Hamilton’s interpretation of Congress’s authority, rather than Madison’s, in the New Deal debate over the constitutionality of Social Security.
Article I, Section 8 of the Constitution empowers Congress “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” In the main, and again at the risk of oversimplifying things, the federal government may regulate entities that accept Medicare and Medicaid funding, not because those entities engage in interstate commercial activity, but because the federal government may impose conditions on institutions that accept public money that Congress spends for the general welfare. (There are limits on this that we need not delve into for present purposes — beyond perhaps obliquely observing that while Congress may nudge states to adopt federal policies, it may not extort them into doing so.)
Because of the foundational differences between OSHA regulations and HHS/CMS spending, the Court may have more trouble with the OSHA mandate than with the HHS mandate.
The federal government may in theory reach its regulatory hand into private businesses only when (a) they are engaged in interstate commerce (as loosely interpreted in the Court’s jurisprudence) and (b) the regulation at issue is truly related to commercial activity that Congress is permitted to regulate. Congress’s authority in this regard, though broad, is not boundless. For example, in the first Obamacare case, NFIB v. Sebelius (2012), the Court held that the Commerce Clause did not empower the federal government to force people to engage in health-care commerce (i.e., to purchase insurance). It would not require much of a stretch for the justices to hold that the Commerce Clause similarly does not authorize Congress to require that people get vaccinated in order to work — particularly given that Covid is not a threat unique to the workplace. (As I discussed in a column on Monday, it would be tricky to do this while preserving the very wide berth OSHA has been given to regulate intrastate commercial activity over the last half century.)
On the other hand, the government may be on firmer footing in imposing a vaccination condition on health-care workers who benefit, directly or derivatively, from government spending on Medicare and Medicaid.
There is a catch here, one narrowly focused on what Congress has done statutorily, which is different in important ways from what Congress could potentially do. As to the latter, the power to spend for the general welfare may give Congress wide authority to require many things of program recipients — even things the federal government would otherwise be powerless to order. But executive bureaucracies are stuck with the laws that Congress has actually enacted. HHS and CMS are not Congress; they may not go beyond what Congress has authorized, even if Congress itself could do more.
On this score, we’ve repeatedly noted that CMS is just an administrator. That it is empowered to administer a spending program that happens to fund health care does not give it authorization to mandate medical treatments. Vaccination is a substantive medical matter in which CMS and HHS have no expertise, the federal government having never before endeavored to mandate vaccination.
So does that mean the HHS mandate is invalid? Not necessarily.
The HHS mandate is not a single blanket directive to Medicare/Medicaid recipients. There are about 14 separate programs involved — everything from long-term-care facilities to ambulatory surgical centers. At Friday’s oral argument, Justice Amy Coney Barrett homed in on these different programs, highlighting the fact that with respect to some of them, but not others, Congress has explicitly directed CMS to take measures to promote health and safety. (See here, pp. 22-28.)
It’s clear that the Court’s three progressive justices would green-light both Biden mandates, seemingly out of a belief that Congress’s mere creation of these “expert” bureaucracies is enough to let them do what they deem to be in the public interest. The more conservative justices, however, will want an explicit congressional authorization.
How explicit? Some will be inclined to say that a vaccination mandate is such an unprecedented expansion of federal power that an executive agency may not administer it, even as a condition of receiving federal funds, absent much clearer authorization than Congress has given here. But a middle position — one that might be attractive to Justice Barrett, Justice Brett Kavanaugh, and Chief Justice John Roberts, who have signaled more willingness than their fellow conservatives (Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) to defer to executive agencies during the pandemic — could be to carve up the HHS mandate. In this scenario, the mandate would be upheld where it applies to programs with specific congressional authorization to promote public health and safety, and invalidated where it applies to programs that lack such authorization.
However this comes out, we can say for now that President Biden’s OSHA mandate is shakier than his HHS mandate, and some aspects of the latter are shakier than others. Consequently, while the mandates may well rise or fall together, they just as well may not. The justices have fast-tracked the mandate cases, so we should know the answer soon, perhaps within days.