While many of us were enjoying time off for end-of-year holidays, the United States Supreme Court added extra work for several lawyers. On December 22, the Supreme Court issued two orders in four cases involving two of the Biden Administration’s vaccine mandates — one involving health care workers and one involving large employers. In these orders, the Supreme Court granted review and set the cases for expedited argument this upcoming Friday (January 7). There are several issues worthy of comment on this order. The first comment is a little “inside baseball.” The other has to do with what is really happening here as oppose to how the media might comment on this case.
Starting with the inside baseball part of this issue, over the past several years, there has been growing criticism of how the Supreme Court is using the “shadow” docket. The shadow docket is a reference to applications for stays of lower court rulings (or alternatively a request that the Supreme Court issue a temporary injunction that the lower court refused to issue). If the application is completely frivolous, it can be denied quickly by an order. If there is some merit, the Supreme Court might request a response. After receiving the response, the Supreme Court typically resolves the application by an order or a brief unsigned “per curiam” opinion. Unless some justice opts to file a concurring or dissenting opinion, the order or opinion does not note the votes of the justices. All that we know is that, at least five justices, agreed with the order or opinion. These cases are typically resolved without full briefing or argument. As some significant issues have come through the shadow docket over the past several years, this process has come under some criticism. This year, we have seen the Supreme Court opt to grant argument on three separate occasions to matters arising from the shadow docket — first on a question about ministers in the execution chamber (argued but still awaiting a decision), second on the ability to challenge the Texas abortion statute, and now on the Biden vaccine mandates. In the first two cases, the parties did get to submit full briefs on an expedited basis. That is not so for the vaccine mandates. While, maybe, the Supreme Court would have gone this right under any circumstances, clearly the fact that the shadow docket is starting to become an issue is something that the Supreme Court has to be concerning to the justices. Perhaps, the Supreme Court will continue to hold expedited argument on major issues arising on the shadow docket to avoid Congress taking action. Only time will tell.
Turning to the merits, while the media will focus on these cases being about vaccine mandates, that framing is misleading at best and wrong in many respects. While the cases do involve a challenge to vaccine mandates, the legal issues have very little to do with vaccine mandates. There is no claim in these cases that vaccine mandates violate the rights of anybody. Cases asserting a right to not be vaccinated have uniformly been rejected. (To be blunt, those cases demonstrate the hypocrisy of the right wing of the Republican Party. At the same time that they are asking the court to overturn Roe vs. Wade, they are bringing these cases asserting a right to bodily autonomy that depend largely on Roe.) Instead, these cases involve two other issues.
The first issue is the Administrative Procedure Act. Oversimplified, for most new regulations, the Administrative Procedure Act established a process that requires an opportunity for public comment before the agency issues its final rule. For emergency situations, the administrative agency can cut that process short. The entire concept behind these requirements is that regulations are likely to be “better” if the agency has all of the information and the concerned parties get a chance to identify flaws in the original draft. In short, a process similar to committee hearings for legislation. Here, the issue is whether there was a sufficient emergency to justify going outside the normal process. On the one hand, the fact that the rules were not immediately adopted when a vaccine became available supports the argument that there was no emergency here. On the other hand, if a global pandemic and mounting evidence of vaccine hesitancy allowing further mutations of the virus is not something that warrants a quick change in policy, I am not sure what would qualify as an emergency.
The second issue is whether the law authorizes these regulations. This issue involves the (Anti-)Federalist Socieity’s ongoing war to repeal the New Deal and the administrative state. So the issues should be very familiar to the readers of this site involving the Non-delegation docrtine and Chevron deference. Simply put, for the health care workers, the issue is whether the statutes governing the Medicare/Medicaid system permit the government to enact regulations related to participation in those programs which require health care providers to implement a vaccine mandate if they want to be paid by Medicare and Medicaid. For the large employers, the issue is whether the statutes governing the Occupational Safety and Health Administration allows that agency to implement a vaccine mandate. Pre-1990, these answers would probably have been simple as the Supreme Court typically read grants of authority broadly and deferred to the agency’s interpretation of its statutes. Today, the answer is less clear.
During the argument on January 7 and in whatever opinions are issued, a key focus is likely to be on what is called the “major questions” doctrine. This doctrine is a corollary to the nondelegation doctrine, and has flourished in recent years as a pushback against agencies using old statutes to address new issues. As currently applied, the non-delegation doctrine requires the legislature to clearly designate the standards that the administrative agency should apply in adopting new regulations. The major questions doctrine looks, not at the standards in the relevant statutes but at the topics. Simply put, the doctrine holds that an agency has to get new authority from Congress before expanding their authority in a way to reach a significant new topic.
The problem with the major questions doctrine is drawing the line. The underlying concept of administrative law is that you delegate authority to departments and agencies because you expect them to develop the expertise and knowledge to address the issues assigned to them. By definition, as things change, the regulations have to change too. To take the Environmental Protection Agency as an example, new evidence might demonstrate that a substance that previously was believed to be harmless is actually very dangerous to health. The rules governing what the agency can regulate remains the same, but the evidence changes the items that are appropriately covered by those regulations. Thus, while the original Congress might have been most concerned with mercury in the water, we now realize that lead in the water is also a serious problem. And the major questions doctrine poses the question of whether the new subject of regulation fits within the prior grant or is it something outside that prior grant of authority with the underlying concept being if something is big enough it should require a separate grant of authority.
Ultimately, that is the issue in these cases. It is clear that the relevant statutes give the government agencies that supervise Medicare and Medicaid the power to require that providers follow good medical practices if they want to be reimbursed. It is clear that the relevant statutes permit OSHA to take steps to protect the health of workers. What is different is that we have not had a pandemic of this type with one-third of the population refusing to get vaccinated because they get their medical information from quacks and politicians that would rather grandstand than save lives. In short, the government has never faced this situation before. If the novelty of a situation precludes government agencies from acting, then there is something wrong with the law. Of course, that is the desire of the far right which wants to, in their own words, reduce the size of government until they can strangle it in the bathtub. Lives depend on the Supreme Court doing the right and legally correct thing. Unfortunately, bad luck and a generation or two in which conservatives better understood the overwhelming importance of the courts creates a real possibility that the majority of this Supreme Court will do the wrong thing.
