The Supreme Court will hear oral arguments in two vaccine mandate cases Friday, the culmination of an extremely expedited and unusual process to get the mandates before the high court.
Both cases are important on their face: the justices will decide whether the Occupational Safety and Health Administration (OSHA) can require COVID-19 vaccination or weekly testing for large employers, and whether the Department of Health and Human Services (HHS) can mandate vaccinations for health-care workers employed at facilities that receive federal funding.
But the way in which the justices engage with Friday’s arguments could also provide clues about how the heavily-conservative bench will treat the Biden administration’s exercise of agency power for the rest of his presidency. Their positioning on these cases could have reverberations far beyond vaccination policy.
“It is about what the Court is willing to let the administration do,” Keith Bradley, co-chair of the Squire Patton Boggs appellate and Supreme Court practice, told TPM.
Supreme Court watchers have tracked a growing skepticism among the conservative justices towards agency authority.
For years, courts deferred to the expertise of agencies, with judges wary to anoint themselves decision-makers of complex and sometimes technical problems. That attitude was concretized in decisions like 1984’s Chevron v. Natural Resources Defense Council, in which justices adopted a position of deference to the agency, even when the statute empowering it to act is vague or unclear.
That mood changed significantly in recent decades, accelerating during the Obama administration, when the right wing of the judicial world became hellbent on taking power back from federal agencies. That’s the community that shaped many of the younger conservatives now sitting on the bench.
Their perspective on agency power could make or break the Biden presidency. The Senate, in the second half of 2021, essentially became a non-participant in the governing process, as senators struggled to lift major legislation over the filibuster firewall.
Progressives like Rep. Pramila Jayapal (D-WA) have already shifted away from legislative negotiations that appear increasingly fruitless, and are instead demanding that Biden do all he can through executive action.
Tomorrow’s cases could serve as a bellwether, indicating how far right the Court has shifted on questions of executive authority. Some experts argued to TPM that if the Court won’t let the administration mandate safe and efficacious vaccines amid a devastating pandemic, that decision would cast doubt on what it would allow.
“The worst outcome would be if the Court strikes down either mandate using broad language that would curb the power of federal agencies to protect the public’s health and safety,” Lawrence Gostin, a Georgetown Law professor, said. “That includes all agencies from HHS and OSHA to EPA.”
The stakes are high: At most, if Democrats ever manage to get Sen. Joe Manchin (D-WV) on board with the Build Back Better reconciliation bill, they’ll likely only have one more reconciliation vehicle to pass legislation with a simple, 50-vote majority. And that’d require them to pass it before the 2022 midterms, where oddsmakers give Republicans the edge to win back at least the House. If Democrats lose control of one or both of the chambers, recent history paints a bleak picture of future legislating opportunities.
The Biden administration would be confined to what it can do unilaterally, through the rulemaking and regulatory power of its agencies. If the Supreme Court cuts that authority off at the knees — as some Court watchers fear it might in this case or in others to come — it could paralyze Biden’s presidency.
But Maybe Not Yet
Other experts, though, think that even if there is a sea change to come in the Court’s handling of the administration’s authority, it won’t happen with this case. Some of that has to do with the technical and procedural questions being debated.
“I don’t anticipate this to impact rulemaking more broadly,” Jenn Mascott, assistant professor at the George Mason University Antonin Scalia Law School, told TPM. “The Court may very well conclude that what OSHA has done here is beyond the terms of what is permitted without necessarily using language speaking to OSHA’s rulemaking authority or, more generally, agencies’ rulemaking.”
OSHA used its emergency powers to put the vaccine mandate in place for six months. That might make it low-hanging fruit for a Chief Justice looking to even the presidential score.
“One or two terms ago, the Court invalidated a signature policy of the Trump administration on technical, procedural grounds,” Bradley said of the Court’s decision in 2020 slapping down the Trump administration’s attempt to dismantle the Deferred Action for Childhood Arrival program (DACA). “So there’s likely a lot of pressure to halt this rule on narrow administrative procedure grounds.”
Some see the HHS case, where vaccines are mandated for health-care workers at facilities that participate in the Medicare or Medicaid program, as more of a slam dunk for the government than the OSHA one. The HHS mandate applies not to a broad swath of the American workforce, but to health-care workers interacting closely with the people who use those programs, including great portions of older and sicker people — already at heightened risk of contracting and becoming very ill from COVID-19. The HHS is also, with almost every kind of facility involved, expressly vested with the power to protect the “health and safety” of its patients.
The Court ruling against the HHS mandate, then, might indicate more clearly the Court’s hostility towards Biden agencies’ authority.
Rulings against either, or both, will at the very least be another data point of the justices’ reluctance to give Biden’s agencies wide latitude in their rulemaking authority.
“It could signal a willingness to dramatically curb federal agency power,” Gostin said.