Impressions from Friday’s oral arguments in the two mandate cases
The Supreme Court heard oral argument on Friday morning in the two cases involving Biden Covid vaccine mandates — the OSHA mandate on all private business with 100 or more employees, and the Department of Health and Human Services (HHS) mandate on health-care workers who participate in Medicaid and Medicare programs. I wrote a preview on the cases earlier this week — here.
The arguments went on for about three and a half hours. Justice Sotomayor is quite justifiably catching flak over some absurd misstatements of fact (our Zachary Evans reports on her claim that 100,000 children are in “serious condition” medically due to Covid — currently, HHS says 3,342 are hospitalized). Still, as Rich and I discussed when we recorded the podcast early Friday afternoon, if your idea of how the U.S. government works was formulated based just on this week, you would have been relieved at the seriousness, competence, and high-mindedness exhibited by the litigants and the justices, if all you otherwise had to go on was the January 6 rhetoric pouring out of Capitol Hill, the White House, and Mar-a-Lago.
It’s possible that we could hear something quickly from the Court because some provisions of the mandates are supposed to go into effect Monday, so the justices must decide quickly whether to issue a ruling or impose an administrative stay (i.e., a delay of just a few days to freeze things in place so the Court can sort through all the briefs and arguments). Meantime, though there is more to digest here than I’ve had time to get through, here are some impressions, which I’ll posit in the form of questions the Court must wrestle with.
Hasn’t that ship sailed?
For me, today’s most interesting aspect was the sense that this is an argument that should have taken place at least a half century ago, when OSHA was established, if not during the New Deal. One of the main complaints of the Court’s three progressives (Justices Sotomayor, Elena Kagan, and Stephen Breyer) was that we have long been living in a world in which Congress grants administrative agencies capacious powers, and the agencies routinely use them to regulate commerce in an extensive (I would say intrusive) manner. Moreover, the federal government is a huge player in the economy, and therefore a great deal of commerce that may once have been the realm of private action is now subject to government regulation because it involves taking public money and benefits. So, the progressives ask, why do we suddenly have to justify the way things have been done for decades? Why are we suddenly fretting over federalism, separation of powers, delegation of legislative authority, and so on?
This is a fair point. Courts, after all, are supposed to follow precedents, and our jurisprudence has blessed the incremental expansion of our now-Leviathan’s authority. Of course, incremental is a problematic part of the dynamic here. When progressives begin their regulatory initiatives, more libertarian-minded Americans say, “It’s a slippery slope. Won’t be long before the president claims the power to issue a national vaccine mandate,” at which point progressives indignantly reply, “No, no, no, that’s crazy talk. We’re just talking about making sure the oven-door handle at the pizzeria is safe” . . . until, a decade later, the president issues vaccine mandates — at which point, libertarians say, “See, see, see?” and progressives counter, “See what? This is just a natural extension of a principle that’s been ingrained in our law for a decade!”
That’s basically what’s going on here. Government bureaucracies have not issued vaccine mandates like this before, but they have done many very intrusive things to regulate the workplace and impose conditions on states and private actors who receive government benefits. Even if this strains or breaks some constitutional limitations, isn’t it a bit late in the day to be complaining about that?
Well, no. This is the Supreme Court we’re dealing with. If things have gotten out of hand, constitutionally speaking, because of precedents that were wrongly decided or have been stretched beyond their intended limits, the Court has the power to revisit that state of affairs with the Constitution as its compass. That’s what mandate opponents are asking for.
Are these really mandates?
Justice Sotomayor repeatedly pressed the claim that the mandates are not mandates at all. As I noted in the aforementioned preview, this was the tack taken by the divided three-judge panel in the Sixth Circuit that upheld the OSHA mandate . . . and the contention was duly dismantled by Judge Joan Larsen in dissent.
In essence, the idea is that it’s not a vaccine mandate because employers may alternatively allow unvaccinated workers to wear masks and get tested regularly (and it doesn’t apply, for example, to those who work outside, those who work remotely, etc.). It’s a disingenuous distinction because (a) the government has been blatant in saying it is trying to pressure (I mean, “incentivize”) people to get vaccinated, (b) the regs are skewed in favor of vaccines, and (c) as a practical matter right now, testing is not available on the scale it would have to be to make the non-vaccine option viable. The mandates are, in fact, really mandates.
How’s Ron Klain’s “work-around” workin’ out?
On the point of what Biden has done here, as Phil predicted, the administration got hurt by White House chief of staff Ron Klain’s foolish tweet, echoing an MSNBC commentator’s crowing that “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations.”
Not only was it clearly Biden’s purpose to issue “vaxx mandates.” Chief Justice John Roberts, as well as Justices Samuel Alito and Neil Gorsuch invoked Klain’s tweet (or retweet) in observing that the exploitation of the agencies’ power is pretextual. What Biden really wanted to do was cover the whole “waterfront” (as Roberts put it), but Congress won’t do that for him, and the president doubts he has unilateral power — or at least he realizes claiming such power would be very controversial. So rather than try to issue an undisguised presidential directive, the administration is quietly (well, maybe not quietly enough) going agency by agency and asking, “How can we frame this as an OSHA issue?” “How can we frame this as an HHS issue?” and so on.
To be clear, the federal government either has this power or it doesn’t. If it does, the fact that someone really should push Klain away from his keyboard should not be fatal to the administration. On the other hand, Klain’s flub is easily construed as “consciousness of guilt” evidence that the administration knows Biden does not have the power he is claiming — either on his own or derivatively through statutes that enable executive-agency action.
Who decides?
This is the heart of the cases, and it was well argued, through the litigants, by Justice Kagan (easily the most effective and persuasive of the progressives) and Justice Gorsuch (among others on the originalist-conservative side). The progressive framework of the case, as Kagan described it, is that the decision on whether to issue the mandate can either be made by (a) administrative agencies that have expertise, can act more quickly than Congress in an emergency, and are politically accountable to the president; or (b) unelected federal judges, who have no expertise and are not politically accountable to the people whose lives are at stake.
No, says Gorsuch: The framework should not be seen as elected/accountable federal officials versus nonelected/unaccountable federal judges; it’s actually the federal government versus the states and private actors.
Gorsuch is right. We are not in a situation in which, if the federal government stays its hand, no one will act and people will die. The federal government has limited, enumerated powers that are rooted in the Constitution; its powers do not increase because of exigencies or because smart, well-meaning federal bureaucrats earnestly believe the government has sensible answers to pressing problems.
Aren’t you conservatives supposed to be textualists?
The strongest progressive argument here is that if the conservative justices are the textualists they purport to be, they should agree with what Biden has done. The text is supposed to be the critical part of reading a statute or regulation. Usually, the textualist argument against an agency action is that the agency is trying to do something Congress has not authorized in the text. Here, progressives maintain, the text clearly endows the agency with power to do the kind of thing the mandates direct.
Conservatives counter that this is because the text is so sweeping it encompasses actions that Congress never anticipated. That is, while Congress may have contemplated the need for emergency workplace regs in 1970, it certainly did not contemplate Covid; and the fact that it has never ordered vaccinations before, even though vaccinations have been around for a long time, is a good indication that the sweeping language wasn’t meant to capture vaccines — as is the fact, for example, that OSHA typically deals with workplace issues, not medical treatments (i.e., if Congress meant to give an agency this task, there were more fitting ones than OSHA).
Is this where the “major questions” doctrine comes in?
Yes. See, the argument against the mandates, and the statutes enabling them, is not quite ambiguity or vagueness. It is not that the statutes involved use confusing terms. It is that if their terms were given maximum literal effect, there would be no limitations on the federal government.
Thus, the relevance of the “major questions” doctrine. The Court has held in a few cases that, where an agency action would have immense economic or societal consequences, or would fundamentally shift the relationship between the federal government and the states or individuals, Congress must speak clearly and precisely that it intends this effect. The problem the Court grapples with here is, how major does “major” have to be before an agency must show that Congress was sufficiently specific and granular in its statutory grant of power — i.e., that Congress truly thought about and intended to give the agency the power it claims? Justice Brett Kavanaugh in particular seemed troubled by the lack of standards on this.
What about the problem of creating textual ambiguity?
Sometimes a statute may not be ambiguous, but an agency makes it seem that way by stretching its language beyond ordinary meaning. This is what Judge Larsen of the Sixth Circuit believed OSHA had done, and it was a big theme of the argument. OSHA is supposed to be able to regulate on an emergency basis if doing so is necessary to address a grave danger in the workplace. The argument against the mandate is that OSHA treats (a) necessary as if it meant merely usefulor rational rather than essential under the circumstances; (b) grave danger as if it meant anything that might conceivably cause death in some people; and (c) workplace as a pretext — i.e., the risks here 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.
This complaint seems to have traction with the conservative justices, who are trying to determine whether there are principled limits on what federal agencies are authorized to do. The progressives would let the agencies do whatever they think it best to do — after all, they’re experts, fast-acting, accountable, etc.
Is there any common ground?
Yes there is. Everyone seems to agree that if a state had done what OSHA did, that would probably be fine. Similarly, everyone seems to agree that if OSHA did something in response to Covid that was narrower and more tailored to the workplace — say, a social-distancing rule that prohibited too many workers from being forced to work in too tight an indoor space — that would be fine. The controversy is that federal bureaucracies are intruding on traditional state-law responsibilities in a sweeping manner to address a general problem that is not peculiar to the workplace or to administering government entitlement programs.
Conclusion
There is much more to this, but I’ve tried to hit the main points of what I monitored this morning (most of the OSHA case, and the tail end of the HHS case). I am more convinced than I was prior to the argument that the Biden administration is going to lose … but we shall see.