The Supreme Court’s Ruling On Vaccine Mandates Threatens The Federal Government’s Ability To Protect Public Health

Public health law expert Lawrence Gostin explains how the Supreme Court’s ruling against OSHA’s ability to implement a vaccine-or-test mandate could potentially undermine the federal government’s ability to effectively respond to public health emergencies.

Casual observers might think the Supreme Court’s ruling in National Federation of Business vs Department of Labor “temporarily” blocking OSHA’s vaccine-or-test mandate for large businesses is a major blow to President Biden’s Covid-19 vaccine strategy. It is. The OSHA mandate was the president’s last, and best, shot at significantly boosting America’s lagging vaccination rate. But the justices’ ruling has far deeper implications for the federal government’s ability to protect the public’s health and safety, ranging from occupational health to safe food and drugs, and environmental protection. If it’s followed through, the Court’s legal logic could make it nearly impossible for federal regulators to promote the general welfare of the public.

Let’s start with the Supreme Court’s impact on businesses throughout America. Relying on the OSHA rule, many large businesses went ahead and required all their employees to become vaccinated. From MacDonald’s and Amtrak to American Express, Goldman Sachs and Blackrock, hundreds of companies mandated vaccines. So have universities. And the courts have upheld the right of private companies to require vaccination as a condition of work. CEOs, moreover, used the OSHA mandate as a political cover allowing them to do what they know is right for the health and safety of their employees. The Supreme Court has now unraveled all that. Just today Starbucks announced it will cease requiring vaccinations, citing the Supreme Court’s decision. Other companies will follow suit.

Large businesses also welcomed the OSHA rule because it set a uniform national standard. Currently 11 states and counting have banned vaccine or mask mandates. That means companies may have to have one rule in one state and another rule in another state. That is why the OSHA rule was so business friendly—it would have preempted all contrary state laws and gave businesses a clear national policy.

Technically, the Court merely stayed OSHA’s rule and sent it back to the Sixth Circuit to reconsider. However, the outcome of that ruling will almost certainly be appealed back to the Supreme Court, and in making its ruling, the 7-3 majority made crystal clear their antipathy, even antagonism, to federal agency powers to do big, hard things to safeguard health and safety. The Court’s opinion more than flirted with the so-called “major questions” doctrine, which posits that Congress must unambiguously authorize an agency to regulate issues of significant political or economic ramifications. This doctrine cuts against a line of precedents dating back to a landmark decision in the 1980s, but in its decision to stay the vaccine mandate, the Court cast doubt on all regulations that have “vast economic and political significance.”

That language has the potential to open the floodgates of litigation against most regulations by federal agencies. After all, when the FDA approves a blockbuster drug or vaccine has enormous political and economic consequences. When CDC closed our borders, and now requires full vaccination for international flights, the ripple effects on travel and trade are deep. EPA regulation of clean air, water, and an array of environmental hazards has incalculable private and public sector costs. EPA rules can even favor certain industries (clean energy) over others (fossil fuels).

In essence, the justices are stifling federal health and safety protection across a wide swath of hazards Americans face every day. States, of course, retain public health powers and that represents another hidden agenda of the Court’s majority. Conservative justices have long tried to reinvent American federalism, whereby the states have broad “police powers” (which include public health and safety), while the federal government remains weak and largely impotent. That explains why the Court was happy to uphold state vaccine mandates, even without a religious exemption.

But it’s also important to understand just how radical the Court’s decision is. Not since the New Deal has the Court struck down a broad congressional mandate to federal agencies to regulate boldly. Countless Supreme Court decisions have upheld broad congressional mandates to federal agencies, despite immeasurable economic impacts.

Many Americans might feel the federal government often overreaches and they can turn to states to protect their health. But states simply cannot effectively act on the most important health issues of our day. The Covid-19 pandemic has shown that weak rules on vaccination and masking in one state eventually spill over to the whole country. How could states ensure that a host of consumer products are safe for use? And how can any state prevent pollution from spewing state-to-state and throughout the nation?

Does the American public really want to handcuff the federal government in its ability to protect against major social and economic risks?

While the Court didn’t delve too deeply into what powers Congress may, and may not, delegate to agencies, it has yet another agenda. The justices want to make it hard, nearly impossible, for Congress to grant broad power to agencies. This is the so-called “non-delegation” doctrine, whereby Congress cannot grant administrative agencies legislative powers. But the Constitution doesn’t define “legislative” powers, and the Court is hinting that OSHA, and a slew of other agencies, are essentially making laws with far-reaching consequence.

The way things are understood now, Congress might define a public policy, such as protecting rivers from pollution, but then leave it to an executive agency such as EPA to set the specific rules needed to enforce this policy. But the “non-delegation” doctrine says that these rules themselves count as laws, and that interpretation would eviscerate the federal government’s ability to set health and safety standards. It’s a Catch 22: To justify broad agency powers Congress must be extraordinarily explicit (“major questions”) but, even if it is explicit, Congress can’t delegate any way to meaningfully enforce them. The crucial legal question going forward may be less about whether the president properly exercised the authority granted to him than whether Congress has the constitutional power to enact broad delegations of power.

Congress can’t possibly anticipate all the risks Americans face, and will face. Politicians also lack the expertise to review the scientific evidence and ameliorate serious hazards. If it’s up to Congress to decide every rule for every situation, it could take years or decades to make changes that keep up with innovative technology that agencies handle as a matter of routine, hindering the ability of businesses to effectively compete against incumbents. It’s for that reason that Congress has delegated wide and flexible authority to agency professions for more than 75 years. The justices are similarly ill-suited to make complex health and safety decisions, yet they are essentially substituting their judgment for the agency’s. As Breyer, Sotomayor, and Kagan said in dissent, the Court’s order “seriously stymies” the federal government’s ability to counter unparalleled threats. “Acting outside of its competence & without legal basis, the Court displaces the judgments of public officials.”

On its face, the Supreme Court’s ideologically tinged ruling on its face simply blocks a president’s decision to mandate vaccinations or testing in the workplace in the midst of a historic pandemic. That’s harmful enough. But the ruling is so much more than that. At stake are federal agency powers to regulate the economy, consumer safety, agriculture, nuclear hazards, and the environment. Does the American public really want to handcuff the federal government in its ability to protect against major social and economic risks?

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