The conservative contingent of the Supreme Court questioned agencies’ ability to mandate the COVID-19 vaccine Friday, often asking why that power shouldn’t be left to Congress instead.
“Why doesn’t Congress have a say in this, why isn’t it the primary responsibility of the states?” Chief Justice John Roberts asked, accusing the administration of using disparate agency mandates as a “workaround” to replace congressional action.
That positioning, made clear during oral arguments over two Biden administration vaccine mandates — one for health-care workers at facilities that get federal funding, and one vaccinate-or-test policy for large employers — formed another point of evidence for the increasingly conservative Court’s growing hostility toward executive branch authority, a shift experts have been tracking for years.
Court watchers predicted that these mandate cases might provide clues about how the now-heavily conservative bench will react to the Biden administration’s attempts to enact policy through the rulemaking process.
Such antagonism towards agency power could prove paralyzing to the Biden administration, if either the current, nonfunctional Senate or a future Republican takeover of one or both chambers cuts off all ability to legislate.
Many of the Republican appointees to the bench did in fact give voice to skepticism about agency power in general terms, while the small liberal contingent fought back.
Critics of the movement to strip agencies of their authority have called the shift blatantly undemocratic, vesting judges with decision-making power over oftentimes complex and technical problems instead of the experts that lead those departments, picked by the President who is, in turn, elected by the people. Justice Elena Kagan became their mouthpiece Friday.
“So who decides?” she asked. “Should it be the agency full of expert policy makers and completely politically accountable through the President?”
“On the one hand, the agency with their political leadership can decide — on the other, courts can decide,” she continued. “Courts are not politically accountable, courts have not been elected, courts have no epidemiological expertise.”
“Why in the world would courts decide this question?” she asked incredulously.
But Kagan remains in the minority. Her conservative peers, most surprisingly stridently Roberts, appeared to approach agency decision-making with suspicion, permeating their questions with the implication of overreach.
Justice Neil Gorsuch even tried to flip Kagan’s democracy argument on its head.
“It’s not our role to decide public health questions,” he said, adding that if there’s any ambiguity as to what agencies can do, the power to decide “belongs to the people’s representatives in the states and in the halls of Congress.”
He barely hid his distaste for the agencies’ rulemaking across the administration.
“The federal government is going agency by agency as a workaround to its inability to get Congress to act,” he said.
Supreme Court justices don’t live in a vacuum (as much as they may like to pretend they do). They know that it would be virtually impossible for this Senate to pass any kind of vaccine mandate — as it would be for them to pass almost all other major legislation requiring the participation of at least 10 Republicans.
It leaves the President and his administration with little choice but to respond to crises — a pandemic, for instance — through agencies’ regulatory and rulemaking powers, something some Democrats are calling for even now.
The conservative justices expressed deep hostility to that authority — an attitude that could cut the Biden administration off at the knees.
Justice Amy Coney Barrett only reinforced that concern when she quibbled with the statutory language that gives Centers for Medicare & Medicaid Services (CMS) the right to make rules protecting the “health and safety” of Medicare and Medicaid patients. Experts thought that the health-care case may win over even conservatives skeptical of the OSHA case, given that Congress laid out the agency’s power in clear language: to care for the health and wellbeing of its patients.
But Barrett still didn’t seem satisfied.
“Let’s say that I disagree with you that every single one of the statutes that references ‘health and safety’ could be interpreted as a grant of rulemaking authority,” she mused. “Why shouldn’t then we leave the Fifth Circuit injunction in place?”
The ultra-conservative Fifth Circuit had frozen the CMS mandate before the case got shifted to another court.
An exasperated Justice Sonia Sotomayor, at another point in the proceedings, translated the conservatives’ argument for congressional dominance at the expense of agencies into plain language.
“The Chief says Congress should act, we shouldn’t let every agency act,” Sotomayor summarized to United States Solicitor General Elizabeth Prelogar. “Could you speak about the relative both expertise and speed with which Congress can act to survey the countless work sites in our economy, to identify the health and safety hazards in each one and to legislate with the granular specificity necessary to address the hazards in all of these different workplaces?”
“Who’s in a better position to act and why?” she asked.
The court’s answer to that question may determine the destiny of the Biden presidency.