The Vaccine Mandate: The Supreme Court Considers a Trip To “Major-Questions-Land”

Below is my column in the Hill on the vaccine mandate cases before the Supreme Court. Businesses and groups are still waiting to see if the Supreme Court will issue an injunction in the OSHA case. The mandate goes into effect today. The issue is not what the decision should be on mandates but who gets to make that decision. That question takes some justices to a place that they would prefer not to go …”Major-question-land.”

Here is the column:

“Major-question-land,” the term used by Louisiana solicitor general Elizabeth Murrill during Friday’s oral arguments over the Biden vaccine mandates, has an almost Disneyesque sound to it. However, unlike Yesterland or Tomorrowland, major-question-land clearly holds no attraction for the Biden administration or the court’s liberal justices.

The defenders of the mandates worked mightily to avoid the fact that it’s the first-ever national vaccine mandate and was decided without the approval of Congress.  Chief Justice John Roberts, a vital vote needed by the administration, noted that this administration was relying on language passed roughly 50 years ago — closer to the Spanish Flu than the novel coronavirus — and stated ominously, “This is something the federal government has never done before.” That sounds not just like a question but a major one.

The major-questions doctrine maintains that courts should not defer to agency statutory interpretations when the underlying questions concern “vast economic or political significance.”

The controversy over the mandates shows the wisdom of the doctrine demanding that Congress not only take action but responsibility, too, for such major decisions.

With increasing confusion over changing CDC guidelines and the risk profile associated with the Omicron variant, congressional action could bring both greater legitimacy and clarity to questions swirling around mandates.

Instead, the Supreme Court is grappling with an executive move that was openly discussed not only as an avoidance of Congress but a circumvention of constitutional limitations.

It was not a good sign for the administration that the most referenced individual during oral argument was Biden’s chief of staff, Ron Klain, who tweeted that the mandates were “workarounds” of the Constitution. Chief Justice Roberts, Justice Neil Gorsuch, and others referred to Klain’s admission as the administration’s lawyers tried to argue that the executive had the constitutional authority to implement a national mandate.

The liberal justices took the “time is of the essence” argument to an almost apocalyptic degree: Justice Stephen Breyer kept mentioning that every second they wait, more people are getting COVID, and he incorrectly stated there were “750 million new cases yesterday.”

Justice Sonia Sotomayor stated as a fact that “Omicron is as deadly as Delta and causes as much serious disease in the unvaccinated as Delta did.” That is not true. Omicron appears to be far more virulent, but less lethal than Delta. Sotomayor also claimed that “we have over 100,000 children, which we’ve never had before, in serious condition, and many on ventilators.” That is also untrue. For patients, up to 17 years old, the seven-day average for hospitalizations was 797.

Justice Elena Kagan also raised eyebrows by claiming that “the best way” to prevent the spread of COVID-19 is “for people to get vaccinated,” and the “second best way” is to “wear masks.” Both claims were immediately challenged. While the vaccine can moderate or lessen the symptoms, states like Massachusetts are reporting that 95 percent of new cases involve the Omicron variant and that vaccinated people are contracting the variant in large numbers. Moreover, while long denied as “disinformation,” medical experts are now admitting that widely-used cloth masks are largely ineffective as protection. Even CNN’s experts now call the cloth masks “little more than facial decorations.”

The questionable claims by the justices were ironic in a case where they were arguing for sweeping deference to support sweeping agency mandates.

Putting aside the factual claims supporting the mandates, there remains the even more dubious constitutional claims. Of the two rules at issue, the OSHA rule has the greatest reach and likely the greatest chance of being struck down. The conservative justices seemed more willing to recognize the government’s inherent authority to issue a mandate for health care workers. However, virtually no health care facilities challenged the rule, and the impact of the rule is not especially great given the industry-wide practice of requiring vaccinations. The OSHA rule attracted the most skepticism from all six conservative justices.

The OSHA rule was issued after months of President Biden claiming the authority to impose a national mandate and then admitting that he did not likely have such authority.

The OSHA rule was clearly “Plan B.”

Notably, while OSHA had discussed whether it could — or should — issue an “Infectious Diseases Regulatory Framework” covering airborne infectious diseases — long before the advent of COVID — it never did so. When the White House was looking for a workaround of the Constitution, OSHA suddenly found what it now claims to be clear authority.

It is not clear — from either a historical or a statutory perspective.

OSHA used an “emergency temporary standard” (ETS) that applies to a “grave danger” when such action is “necessary to protect employees from such danger.” An ETS is generally used to protect employees “from exposure to substances or agents determined to be toxic or physically harmful, or from new hazards.” It can only be used in emergencies when “necessary to protect employees from such danger.”

The emergency need for the ETS seems as much political as health-based. After waiting for over a year, OSHA suddenly declared the need to promulgate an ETS without going through the required “notice and comment” process.

When President Trump sought to skip such notice and comment steps, it was challenged by Democrats as abusive.

If the Biden administration loses on the OSHA case, it would constitute a major political and legal blow. The administration has racked up an impressive list of losses in federal court — but this one could be particularly costly.

Various justices like Neil Gorsuch have long criticized the “Chevron Doctrine,” the basis for courts deferring to federal agencies in their interpretations and policies. The liberal justices continually returned to such deference in their comments on Friday. This case could offer a perfect vehicle to curtail that doctrine and reduce that deference in future cases. That would impact policies across the legal landscape — from environmental laws to work-safety regulations to banking rules.

At a time when liberals are demanding more unilateral action from Biden due to congressional opposition to his agenda, such a ruling could curtail the ability of federal agencies to circumvent Congress.

This is also a major question.

That’s why neither the administration nor the liberal justices want to visit “major-question-land.” For those who want unilateral presidential power, that is not the “Happiest Place on Earth.” It is, however, the most democratic.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

105 thoughts on “The Vaccine Mandate: The Supreme Court Considers a Trip To “Major-Questions-Land””

  1. It’s sad that I’m going to have to choose between being killed by big pharma or being killed by the government. All of the conspiracy theories are coming true. There really is a mass psychosis and a religion being formed around these vaccines and mandates. I’m not taking the shot, my blood will be on the hands of those that promulgate this madness.

  2. MANDATORSHIP

    Endless unconstitutional fiefdoms wielding unconstitutional power without any discernible legal or constitutional basis.

    Karl Marx et al. decree a Department of Labor, so Americans are forced to suffer an unconstitutional Department of Labor.
    ________________________________________________________________________________________________

    “The lunatics have taken charge of the asylum.”

    – Richard A. Rowland

        1. We should not complain about her remark or the remarks of Kagan and Breyer. Those remarks show the American people how ignorant the SC Justices of the left are. We need to eliminate or reduce Ivy League Justices and Justices that represent the coastal and DC communities. I recognize that some of my favorite justices may have come from these places, but they do not represent America. They mostly represent narrow views unless they permit their knowledge to come from a broader source. One person doesn’t hold more knowledge than millions of people. Nine identical justices from identical places don’t represent the knowledge of 330 million Americans.

          1. While I appreciate your comment, I have to disagree, to some extent. I don’t agree that the justices need to “represent” the population. If the Ivy League produces the best judicial experts, then the court should be filled with Ivy League graduates, not that I believe that this is the case. Our experience with Ivy League justices strongly suggests that they are not in fact the best and the brightest. Unfortunately, the Ivy League justices seem to think they are the most brilliant, and, therefore, do not hesitate to inject their policy views into decisions that should be based only on the law. What we need are justices who are smart enough to know that they are not as smart as everyone thinks, that their job is to focus narrowly on the law, and that their own policy views are irrelevant.

            1. Pudnhead, I don’t think you disagree with the underlying point I made. You want the best, and so do I, but using people from the same places means that their answers will too frequently represent the places they come from. I don’t want clones of one another.

              Scalia was perhaps one of my favorite justices, and his law school was Harvard. He was an exceptional human being who based his thoughts on an immense amount of knowledge and history. I once had the pleasure of talking to him, and he could condense a broad discussion involving a lot of history clearly into a short number of sentences. I found that type of intelligence to be unique, so I wouldn’t want to lose such a person from the bench, but I would risk it so that we didn’t run the risk of a Supreme Court that was only of one mindset.

  3. In a constitutionally limited republic, *the* major question is: Where in the Constitution does it grant government the power to force individuals to undergo a medical procedure?

  4. “[E]very second they wait, more people are getting” fat, lazy, and stupid.

    Therefore, the government should mandate daily exercise and nutrition, a 40-hour workweek, and the reading of at least 10 classics per year. (Those who refuse to obey the regime, will have a “testing” option. That way, we can gaslight people into believing that they are being given a “choice.”)

    That one claims to have a “noble” cause is not a justification for the government to use its police powers.

  5. I could be missing something, but I thought the job of the SCOTUS was to interpret the Constitution, not to moralize.

  6. As someone who worked in the military in biological, radiological and chemical weapons, what alarms me more than anything is how uninformed opinion and statistics are being relied upon to make national, and international, decisions.

  7. If you use Sotomayor’s reasoning, “your money or your life” isn’t unduly coercive. After all, you have a choice.

  8. I can only say lying and politicizing this airborne respiratory disease harms the nation. People like Anonymous the Stupid will lie to push an ideology.

    https://jonathanturley.org/2022/01/07/preserve-the-narrative-the-public-rejects-the-insurrection-claim-in-new-polling/comment-page-3/#comment-2149709 (see ATS comments above and below)

    Our MSM and social media are causing widespread hysteria to such an extent that three Supreme Court justices hearing a case on the Biden executive order demonstrate a total lack of knowledge of the facts and science of Covid and its vaccines.

    1. I expect the following comments to be deleted.
      Anonymous the Stupid #1 “You’re obsessed with anonymous commenters. Seek psych help.”
      Pretend ATS friend #1 “He certainly is.”

      Maybe I focus too much on Anonymous the Stupid because he represents a group of people out in the cyber world. They need to recognize how Stupid he sounds to understand how Stupid they sound. If you wish to call it an obsession, do so, but people like yourselves permitted a Hitler to do what he did. You are not nice people when you lie and deceive.

      Why does Anonymous the Stupid need a pretend friend to stand with? He believes that numbers determine right and wrong, so he adds fake generic anonymous postings to his numbers. He is a fool. It is a public service to enlighten people about the trash existing in our world.

      1. Guess what Anonymous the Stupid, both your comments were deleted as I predicted. Your reply, “Inflammatory bs by S. Meyer.” was also deleted.

        You should know by now that the truth can hurt. Your wings have been clipped and one can guess that is a painful experience. It is your own actions that cause you such pain. Stupid people of the world, take note of Anonymous the Stupid so that you can avoid the pain of being Stupid.

        You have also proven that what I have said about you multiple identities is true.

        1. Of course, Anonymous the Stupid doesn’t know when to shut his mouth. To date, his last comment was: “Because the moderator is biased.”

          The moderator is not biased or Stupid. It seems the moderator has determined this address has tried to bypass the civility rules, so whether automatic, semi-automatic or manually, this particular address of Anonymous the Stupid is being deleted as it should be. Anonymous the Stupid uses other addresses, names and icons for his pretend friends to comment. Most of them are not deleted, proving the moderation is not biased in the fashion Anonymous the Stupid believes. But who expects Anonymous the Stupid to recognize that fact? After all, he is Anonymous the Stupid.

          1. There is no end to the Stupidity of Anonymous the Stupid. Here is an excerpt of three more comments that were deleted as well.

            #1 “I’m feeling no pain at all.”

            It must be the drugs or alcohol.

            #2 “I’m feeling no pain at all.”

            I am waiting for leftists like you to fry each other like they did in the French Revolution.

            #3 “Gotta run, pal.”

            Could it be that Anonymous the Stupid has learned something?

            (Note, it seems #3 hasn’t yet been deleted.)

            SM

        2. Anonymous the Stupid doesn’t learn. He thinks his last statement represents a powerhouse of knowledge. ATS said: “S. Meyer: still clueless”

          Apparently not, because, again, your comment was deleted. You said absolutely nothing. Do you know Why? Because you are Anonymous the Stupid.

          (I am not using my name or icon for identification to help people save time by not reading what is a dumb exchange between ‘anonymos’ contributors. However, sometimes one has to descend to the low level of another to make a point.)

          1. Allanonymous the Stupid only underscores that — in the words of another Anonymous — he is “obsessed with anonymous commenters.” Allanonymous the Stupid should indeed seek psych help.

            I doubt he realizes how nuts his rants are.

          2. 3 more nonsensical posts by Anonymous the Stupid already deleted and one more below probably waiting for deletion.

            The guy is nuts.

            SM

            1. Note that Anonymous the Stupid is closing in on a dozen more inane postings mostly deleted. To date, one of the non-deleted posts is of an Anonymous the Stupid pretend friend patting Anonymous the Stupid on the back.

              That powerhouse of knowledge, Anonymous the Stupid (sarcasm), who chose to use an address to be deleted now wants to ensure his stupidity is recorded for posterity. He can’t stand a lack of being noticed. Will he now consider a new name(es)or icon(s) using a different address? Probably, he can’t help himself and is totally out of control.

              SM

  9. Chief Justice John Roberts, a vital vote needed by the administration, noted that this administration was relying on language passed roughly 50 years ago — closer to the Spanish Flu than the novel coronavirus — and stated ominously, “This is something the federal government has never done before.” That sounds not just like a question but a major one.

    This is the strongest argument against the lawfulness of the ETS.

  10. There are a number of points to make about all this:

    1. Omicron is now by far the dominant variant. It evades vaccines. It is considerably milder. Over time the vaccines may in fact have “negative efficacy” against Omicron. This was noted in a WSJ opinion piece today by a Nobel Prize winning immunologist. The data and arguments that may have been relevant to Delta are now at best questionable. These crucial facts were largely ignored at the Supreme Court.

    2. The virus does not originate in the workplace and its effects are not limited to the workplace. Vaccination is not a measure that is confined to the workplace, such as hard hats, protective clothing or goggles or other workplace safety measures. It affects the worker everywhere and forever. The act OSHA is relying on does not clearly say that these kinds of hazards can be fought by these kinds of measures. The ambiguity here requires the application of the major question doctrine to stay the mandate.

    3. Covid, especially Omicron, is not a grave danger to all workers. As was highlighted in oral argument, the unvaccinated young are generally less at risk than the vaccinated old, and OSHA determined that the virus was not a grave danger to anyone who is vaccinated. So how can the virus be a grave danger to the unvaccinated young? If it is not, the mandates are not necessary to counter a grave danger as to them. So even under standard principles of statutory interpretation, the mandates should fail.

    4. If the Court does not stay this mandate it will have gutted the major question doctrine, which it just relied on in the eviction moratorium case.

    5. The health care facilities case should come out the same way. Under the major questions doctrine, the executive branch is not free to intrude on traditional state powers without clear and specific statutory language. Setting conditions for the receipt of federal funds should not be found to be a “work-around” of this constraint. I fear that Roberts, Kavanaugh and Barrett may screw up the health care facilities case, in an act of “judicial statesmanship”.

    1. 2. The virus does not originate in the workplace and its effects are not limited to the workplace. Vaccination is not a measure that is confined to the workplace, such as hard hats, protective clothing or goggles or other workplace safety measures. It affects the worker everywhere and forever. The act OSHA is relying on does not clearly say that these kinds of hazards can be fought by these kinds of measures. The ambiguity here requires the application of the major question doctrine to stay the mandate.

      In this context, the vaccine mandate is like a mandate for construction workers to have a surgical procedure to have the tops of their skulls replaced with a more durable, shock-absorbant, dent-resistant material.

  11. I would very much like to read some legal analysis on CMS’s claimed authority to mandate hospital workers and any limits to that authority.

  12. Speaking of major questions, why are regulatory agencies allowed to make any legislative decisions, which is what they do all the time. Where in the Constitution is Congress given the power to delegate legislation to agencies? I can understand why Congress likes to create agencies and hand over to them the power to adopt legislation (called rules and regulations). By doing so, Congress avoids taking direct responsibility for the agency legislation and can even criticize it if it turns out to be unpopular. But I do not understand the contitutional rationale for the delegation of legislative power to these agencies. Why is this power only subject to scrutiny when it involves so-called major questions?

    1. Pudhead,

      “ But I do not understand the contitutional rationale for the delegation of legislative power to these agencies.”

      This is a very big country. And multiple areas of industry, finance, transportation, healthcare, etc are constantly evolving and expanding. Congress would be required to constantly update laws and regulations in each of those and congress critters are not exactly deemed experts in every one of those fields. This is where the commerce clause in the constitution gives congress the power to delegate certain rule making abilities to the agencies created specifically to deal with each of those areas. Where experts and those who are constantly involved in those areas are better suited to regulating them. States have their own regulatory agencies that state legislatures have delegated regulatory authority as well.

      Without them a free for all abuse of workers and institutions would be the result.

      1. “This is where the commerce clause . . .”

        The commerce Clause should be repealed.

        “Without them a free for all abuse of workers and institutions would be the result.”

        Right, because companies do *not* have an incentive to treat good employees well. They’re *not* concerned about recruitment, retention, success, or about being productive and profitable.

        You need to extricate yourself from your Upton Sinclair distortions of American capitalism.

        1. Sam,

          Once a company is free from regulatory oversight, historically they have put profits over employees health, or customer safety. How would any company be held accountable for harming hundreds of thousands or millions?

      2. You have offered a “practical” rationale not a constitutional one. The commerce clause you cite is the most abused by our government and the courts. I do not believe it was intended by the authors of the Constitution to grant almost unlimited power to the federal government. The Supreme Court held the line, more or less, until FDR threatened to pack the court, and then the cowardly court surrendered. I worked for one of these agencies for many years, and I can tell you that the “expertise” you attribute to them is greatly exaggerated. Furthermore, I worry more about the abuse of government than the abuse of the private sector.

        1. “I do not believe it was intended by the authors of the Constitution to grant almost unlimited power to the federal government.”

          You are correct. The Founders’ motivation for the CC was to give the federal government the power to stop states from erecting barriers and tariffs against other states.

        2. Pudnhead,

          “ You have offered a “practical” rationale not a constitutional one.”

          You didn’t ask for a constitutional explanation. But the commerce clause does not grant unlimited power to congress. It does give congress power to regulate commerce across state lines and international commerce. It’s a necessary requirement for any nation to have such powers.

          Abuse is more prevalent in the private sector. Just look at Boeing’s 737 MAX fiasco.

          1. “Just look at Boeing’s 737 MAX fiasco.”

            That is the argument statists always use to rationalize government control of the economy.

            A company (allegedly) produces a defective product. Then statists make this irrational, unjust, and unConstitutional leap: Therefore, government must assume that all companies are guilty, until they prove themselves innocent.

            You don’t punish the innocent for the (alleged) misdeeds of the guilty. And in the Western system of jurisprudence, an individual or a company is assumed innocent, until proven guilty.

      3. Svelaz the Stupid proves it once again.

        Government does not draw the best and brightest….and far too often…and in most cases that causes real and significant problems.

        One example is “Fly by Wire” technology in helicopters.

        As Helicopter Engineers were wanting to apply that technology to new aircraft designs….the stumbling block was the FAA’s lack of competence in the technology….and several manufacturers elected not to do so purely because of the problems they would have in achieving Certification by the FAA.

        Look at how politicized Government Agencies have become….and how far Congress and the Courts have been in reigning in their excesses.

        The Enumerated Powers limit (at least used to anyway) what the Federal Government can do…….and reserved all other powers to the States or the People.

        That is one concept that Svelaz the Stupid just cannot grasp or admit.

        1. Ralph Chappell,

          “ One example is “Fly by Wire” technology in helicopters.

          As Helicopter Engineers were wanting to apply that technology to new aircraft designs….the stumbling block was the FAA’s lack of competence in the technology….and several manufacturers elected not to do so purely because of the problems they would have in achieving Certification by the FAA.”

          Ralph, oh boy. Ralph, Engineers wanted to apply fly by wire technology when it was still new. That “stumbling block” was the FAA requirement that the new technology was safe and mature enough so that every potential issue with its reliability was addressed.

          There’s a reason why the FAA exists. Events like those of Boeing’s 737 MAX crashes which relied on BOEING self regulation on safety and design would be more common and more frequent.

          Fly by wire meant getting rid of physical connections to flight controls in an era when people didn’t trust the reliability or dependency on computers.

          It wasn’t a “lack of competence”. It was a need of proof that the technology was sound. Many manufactures elected not to use fly by wire because the technology was not mature enough to replace conventional systems yet.

          Ironically AIRBUS had fly by wire long before BOEING did in commercial airliners because they spent more money to prove the technology was safe and reliable. Boeing didn’t want to spend the money.

          1. “Boeing’s 737 MAX crashes which relied on BOEING self regulation on safety and design would be *more common and more frequent*.” (Emphasis added.)

            BS.

            Companies do not become or stay profitable by manufacturing defective products. Their most valuable commodity is their reputation — which is built on quality products.

            Again, you need to stop channeling Upton Sinclair and his ilk.

      4. “This is where the commerce clause in the constitution gives congress the power to delegate certain rule making abilities to the agencies created specifically to deal with each of those areas. Where experts and those who are constantly involved in those areas are better suited to regulating them.”

        Svelaz, you have proven once again your inability to learn from mistakes. Recently, you misquoted NY regulations for oral antivirals and FDA approval of Covid vaccines. Even after providing exact quotes from the FDA and NY Dept of Health, you still couldn’t understand what you read.

        I’ll skip what you say about the Constitution because you don’t understand its basics.

        You think regulatory bodies are better suited to regulating industries. Do you remember around 9th grade when they taught you about the regulation of railroad rates? Long-haul vs. short-haul. Short-haulers were paying a higher rate than long-haul because competition forced long-haul prices down. A regulatory body was created. The intention was to make sure the short-haul consumer wasn’t overpaying. Who do you think knew enough about trains to be a member of the regulatory body? Railroad management and owners. They became the regulatory body. They solved the problem of high short-haul rates compared to long-haul rates and raised the price of long-haul. That is the nature of many government regulatory bodies.

        (Excuse my liberties in the history provided. I had to keep it super simple for Svelaz.)

  13. It was not only decided “without the approval of Congress” but also without following the Administrative Procedures Act It’s not just whether DoL had the statutory authority but even if it did, did it follow the rules (see the recent Census case). As an aside, this case predated Omicron and — whatever — all three liberal judges lied about the effect of Omicron.

    You probably should reword the last sentence however as it seems to confuse unilateral with unitary (unless that’s what you meant and, if so, it would be the most important sentence in the post).

  14. I am praying the dems get their butts handed to them again. The vast majority of us see them for the tyrants they are and won’t have it. We are not, however, 20 years old and slaves to dysfunction and ignorance – we would greatly prefer the rule of law to stand than violently and leftily destroy large swaths of society.

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