On Friday, the Supreme Court will hear oral arguments in a set of cases challenging President Joe Biden’s COVID vaccine mandates. Biden’s policies prompted a flurry of litigation across the country, with lower court judges reaching wildly divergent conclusions about their legality. Now the justices will determine—on an accelerated timeline—whether the administration can lawfully impose these new rules in the midst of the omicron wave. These cases also have sweeping implications for many other areas of federal regulatory law from housing to pollution, giving the Republican-appointed justices an opportunity to hobble Biden’s entire agenda. Below, we’ve answered some frequent questions (and corrected some common misperceptions) about the imminent showdown between the president and the Supreme Court.
What cases will the Supreme Court hear on Friday?
The court will hear two cases that challenge two different vaccine mandates: National Federation of Independent Business v. Department of Labor and Ohio v. Department of Labor.
Wait, two different mandates?
The first case (let’s call it NFIB) involves Biden’s “employer vaccine mandate,” which requires large companies to give their workers an ultimatum: either get vaccinated against COVID or wear a mask and get tested weekly. The second case (let’s call it Ohio) requires health care providers that receive money from Medicare or Medicaid to mandate vaccinations for their staff. Most hospitals and care facilities participate in Medicare or Medicaid, so the rule covers most health care workers in the country. Republican attorneys general have led the legal battle against both rules.
Doesn’t Biden’s mandate force every American worker to get a COVID shot?
Nope. The employer mandate only applies to companies with 100 or more employees. And, again, it doesn’t even require vaccines—objectors can choose to mask and test instead. The health care mandate isn’t universal, either; it allows for medical and religious exemptions.
I heard the Supreme Court upheld state vaccine mandates without religious exemptions. Does that mean it’s likely to uphold Biden’s mandates, too?
There are two basic buckets of legal challenges to vaccine laws. The first are religion-based challenges, which argue that vaccine mandates without religious exemptions violate the First Amendment. And the Supreme Court has indeed swatted these away by a 6–3 vote. The second bucket of cases question the federal government’s authority to mandate vaccinations, even if they include religious exemptions. Both NFIB and Ohio fall into that bucket. The Republican-appointed justices will probably be even more skeptical of these federal mandates.
Congress hasn’t passed a vaccine mandate, has it?
No. Congressional Republicans adamantly oppose such laws. But in each case, the Biden administration has interpreted existing statutes to authorize both the employer and health care vaccine mandates.
Start with NFIB. Federal law allows the Occupational Safety and Health Administration to issue such an “emergency temporary standard” when it determines that it’s “necessary” to protect employees from a “grave danger” resulting from “physically harmful” “agents” or “new hazards.” That’s the basis for OSHA’s employer mandate.
Now turn to Ohio. Federal law compels the health and human services secretary to impose new “requirements” on eligible facilities when they are “necessary” to protect patients’ “health and safety.” That’s the basis for HHS’s health care mandate.
How have these rules fared so far?
The lower courts have divided mostly along partisan lines, with Democratic-appointed judges upholding the rules and Republican-appointed judges opposing them. (Several Trump judges infused their opinions with anti-vax lies and skepticism toward the pandemic’s severity.) The Supreme Court took up both cases in part to resolve this circuit split.
What are the legal arguments against the mandates?
The coalition challenging both mandates argues that they exceed the text of the statutes that the Biden administration relied upon. But those statutes are extremely broad. So the plaintiffs have also offered two legal doctrines supposedly derived from the Constitution.
First, they cite the “major question doctrine.” Under this principle, federal agencies cannot issue a regulation that raises a “major question” of economic or political significance without a “clear statement” from Congress. So, for instance, it wouldn’t be enough for Congress to instruct the health and human services secretary to protect health care workers’ “health and safety”; instead, Congress would have to pass a law requiring COVID shots for health care staff.
Second, the challengers cite the nondelegation doctrine, which bars Congress from “delegating” too much authority to federal agencies. The idea is that only Congress can legislate, and when it gives too much discretion to the executive branch, it unconstitutionally transfers its legislative power. Here, the plaintiffs argue that if federal laws can be read to permit Biden’s mandates, then those laws are unconstitutional delegation of legislative authority.
Do those doctrines appear in the text of the Constitution?
No. There is no “major questions clause,” no “nondelegation clause,” no provision explicitly granting federal courts the power to police boundaries between Congress and the president. Instead, these doctrines are allegedly gleaned from the Constitution’s “structure,” which is a fancy way of saying they’re made up. Moreover, the doctrines are so “vague and open-ended,” as Vox’s Ian Millhiser put it, that they transfer massive amounts of power from the elected branches to the judiciary. Unelected judges can wield these tools to strike down any policy they personally dislike.
I’m not convinced that unelected bureaucrats are much better.
The difference is that federal agencies are staffed with subject matter experts with a deep understanding of the problem. Ohio, the health care mandate case, provides a vivid example. HHS’s rule has drawn support from the American Public Health Association, the Association of American Medical Colleges, 22 deans of public health programs, 126 leading public health scholars, eight former high-ranking federal health officials from both parties, and 53 organizations that represent virtually the entire health care profession in the U.S..
On the other side are armchair epidemiologists like Trump Judge Terry Doughty, who declared that “requiring COVID-19 vaccinations to healthcare workers covered by the mandate would hurt the patients” and issued a nationwide injunction against the mandate, citing the major question and nondelegation doctrines. Doughty also falsely claimed COVID vaccines do not prevent transmission, credulously citing a fringe anti-vaxxer.
Who would you rather have deciding the nation’s public health policy?
OK, I’m sold. But will any of this matter to the Supreme Court?
Unlikely. All six Republican-appointed justices have evinced profound hostility toward the “administrative state.” In August, when these justices struck down the CDC’s eviction moratorium, they used language that invoked the major questions doctrine. Moreover, five justices are on the record endorsing the nondelegation doctrine. So it seems possible—even probable—that a majority will deploy these arguments to invalidate Biden’s mandates.
It’s worth noting that the Supreme Court has already taken up a case challenging the EPA’s authority to restrict carbon emissions. Like NFIB and Ohio, that case seems designed to blow up federal agencies’ power to address the crises of our time. So if the justices don’t deploy these conservative doctrines to kill vaccine mandates, they will have an opportunity later this term.
What happens if SCOTUS uses these doctrines to block the mandates?
The most immediate consequence will be a repeal of the mandates. The government estimates that these rules would save hundreds or thousands of lives every month. So the court will exacerbate the omicron wave while ensuring that thousands more people needlessly die from COVID.
Despite these high stakes, the longer-term consequences are arguably worse. Congress routinely grants the executive branch broad powers to implement federal policies; NFIB and Ohio mark the conservative legal movement’s latest effort to kneecap these powers, killing the “administrative state.” Regulations of pollution, labor, housing, the economy—pretty much everything, really—rests on congressional delegations from Congress to the executive branch. Congress entrusts experts at OSHA, HHS, the EPA, and every other agency to accomplish its goals. And if these delegations are struck down, basic government functions would grind to a halt. As Justice Elena Kagan once wrote, if the conservative justices are correct about the nondelegation doctrine, “then most of government is unconstitutional—dependent as Congress is on the need to give discretion to executive officials to implement its programs.”
That sounds alarming.
It is! The fight over vaccine mandates is also a fight over who decides how the U.S. may react to the pandemic—as well as every other urgent problem facing the nation. Does this responsibility fall to experts in the executive branch whom Congress has tasked with policymaking? Or does it fall to federal judges? Executive officials may not be elected, but they do report to the president, who answers to the people. Federal judges, by contrast, are accountable to no one; they face no elections and have no constituency.
This is what NFIB and Ohio are really about: Whether the sitting president—acting through his experts—or the dead hand of the Trump administration—acting through the courts—gets to guide public health during the deadliest pandemic in American history.