The U.S. Supreme Court has blocked the Biden administration’s attempt to mandate vaccines or weekly testing for all employees of private businesses with at least 100 employees.
In an order released Thursday afternoon, the court said the secretary of labor lacks the necessary authority to impose such a mandate without congressional authorization. The Occupational Health and Safety Administration (OHSA), which is part of the Department of Labor, was supposed to enforce the mandate, which covered an estimated 84 million American workers.
“This is no ‘everyday exercise of federal power,'” wrote Justice Brett Kavanaugh in the order. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly. Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”
Separately, the court upheld Biden’s mandate that health care workers must be vaccinated to work at medical facilities receiving Medicare and Medicaid funding. That narrower order can stand because the Department of Health and Human Services does have the authority to regulate the health and safety of patients in those facilities, the court said.
The broader mandate that covered private businesses has always seemed unlikely to stand up in court. Indeed, Biden had dismissed the idea of a vaccine mandate as recently as December 2020, before changing his mind and issuing the mandate this past September.
Before the case reached the Supreme Court, a three-judge panel at the U.S. Court of Appeals for the 5th Circuit unanimously blocked the mandate, calling it “fatally flawed” and “staggeringly broad.” As Reason‘s Jacob Sullum explained at the time, the court highlighted what it called “grave statutory and constitutional issues” with the mandate, including the fact that OSHA was being called upon to enforce rules well outside of its usual authority.
Kavanaugh noted that same problem in Thursday’s order.
“Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided,” he wrote. He pointed out that Congress has enacted several laws relating to the COVID-19 pandemic but has “declined to enact any measure similar to what OSHA has promulgated here.”
In a dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued that OSHA was acting within its broadly defined limits. “The administrative agency charged with ensuring health and safety in workplaces did what Congress commanded it to: It took action to address COVID–19’s continuing threat in those spaces.”
But saying that OSHA has the authority to regulate workplaces is not the same as saying that OSHA has the authority to regulate all aspects of every individual workers’ lives—not even during a pandemic. That was a crucial part of the Supreme Court’s review of the mandate, much of which centered on the so-called “major questions doctrine.” If there is ambiguity in the powers that Congress has delegated to an executive branch agency, Justice Neil Gorsuch pointed out during the argument over the mandate last week, then Congress must clarify any expansion of executive authority beyond what’s clearly stated in the law.
Beyond the legal and constitutional questions, Biden’s mandate also raised worrying philosophical questions about the limits—or lack thereof—on government power and the ramifications of its use in these circumstances. “Forcing vaccines on a minority contingent of unwilling people is a huge error that risks shredding the social fabric of a country already being pulled apart by political tribalism,” Reason‘s Robby Soave wrote in The New York Times in September. “The president should not—and most likely does not—have the power to unilaterally compel millions of private-sector workers to get vaccinated or risk losing their jobs: Mr. Biden is presiding over a vast expansion of federal authority, one that Democrats will certainly come to regret the next time a Republican takes power.”
In the end, the five-month saga of Biden’s private-employer vaccine mandate highlighted just about all of the major problems with how the federal government operates these days. Here was a major policy change implemented not by the legitimate legislative authority (Congress) but by the executive branch, which increasingly sees its authority as covering anything that’s not been explicitly forbidden. Congress then stood by and waited for the Supreme Court to invalidate the order, effectively forcing nine legal scholars to do its job.
The outcome is the right one—Biden’s order was a breathtaking overreach of federal power into the affairs of private individuals and businesses—but this is, to paraphrase Kavanaugh, not how the everyday exercise of government should work.