• Curt Levey

Vaccine Decisions: Limited Government and a Moderate Supreme Court


January 13, 2022


The Committee for Justice released the following statement by its president, Curt Levey, commenting on the Supreme Court's decisions today on the federal COVID-19 vaccine mandates for large employers and health care facilities:


Today the Supreme Court struck a blow for the separation of powers and the constitutional limits on the administrative state when it blocked the Occupational Safety & Health Administration’s vaccine mandate for private employers, concluding that the mandate exceeds the statutory authority granted by Congress to regulate workplace health and safety standards. In a second decision, the Court upheld a vaccine mandate for health care workers.


While the OSHA decision was a big victory for those opposed to mandating COVID-19 vaccines, it was an equally important victory for those fighting to reign in the ever-expanding powers of the administrative state and to limit courts’ permissive deference to agency regulations. The Supreme Court made it clear that there are limits on both the power of federal bureaucrats to expansively interpret statutes and Congress’s ability to delegate its power to the executive branch by passing broad, vague statutes and allowing federal agencies to creatively interpret them.


“Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization,” the Court said. In fact, as the Court noted, a majority of the Senate voted to disapprove of the OSHA vaccine mandate shortly after it was issued.


We are pleased as well that Justice Gorsuch’s concurrence, joined by Justices Thomas and Alito, emphasized the major questions doctrine, an important check on the power of the administrative state. The doctrine requires that when a federal agency asserts authority over decisions “of vast economic and political significance,” as OSHA did here, it must be based on a statute which makes that authority crystal clear.


In the other decision today, upholding the Secretary of Health and Human Services’ vaccine mandate for health care workers, the Court concluded that “the Secretary’s rule falls within the authorities that Congress has conferred upon him.” While four of the Justices disagreed, HHS’s theory of authority clearly involved less of a statutory stretch than the OSHA rule.


The Court’s balanced approach, granting deference to HHS where its authority is at least plausible, while declining to defer to OSHA’s more creative theory of authority, puts the lie to Democrats’ portrayal of the Court as bent on substituting conservative ideology for objective legal analysis.


The contrast between Democrats’ "hard right" portrayal of the Court and the reality of a moderate Court which sometimes disappoints liberals and sometimes disappoints conservatives is important because Democrats and their allies are using these scare tactics to sell their proposal to pack the Supreme Court with four additional justices, all appointed by President Biden.