PREDICTED: Supreme Court Stays Vaccine Mandate
By: Shawn M. Flynn and Jared J. Roberts
In a recent October 2021 Townhall article, Binnall Law Group correctly predicted that the Supreme Court would strike down the Occupational Health and Safety Administration’s (OSHA) vaccine mandate because such a mandate is not within the statutory authority of OSHA. Specifically, the article argued that the Supreme Court should find that “OSHA’s intelligible principle is unconstitutionally broad, and thus their vaccine mandate is invalid and unconstitutional. Even if OSHA’s intelligible principle were legitimate, by mandating vaccines, OSHA would not be acting within the bounds of their intended power.”
The article argued that OSHA is, based on its legislative history and previous actions, limited to regulating workplace hazards. The COVID-19 pandemic is not such a workplace hazard. Specifically, “[a]lthough courts often defer to agencies’ expertise when they act within the bounds of their intended power, courts do not, and must never, give any deference to agency action without proper delegation of power. In the legislative history, Congress made it clear that OSHA was meant to address hazards in the workplace. Specifically, Congress noted the hazard must be one that is likely to cause death or serious bodily harm.”
On January 13, 2022, the United States Supreme Court issued a stay of the vaccine mandate. The Supreme Court considered the legislative history and past actions taken by OSHA: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. This ‘lack of historical precedent,’ coupled with the breadth of authority that the Secretary now claims, is a ‘telling indication’ that the mandate extends beyond the agency’s legitimate reach.”
As predicted, the Supreme Court determined that “The question … is whether the Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures.” “Confirming the point, the Act’s provisions typically speak to hazards that employees face at work. And no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.”
Even the Solicitor General, arguing against the stay, admitted that OSHA is limited to regulating work-related dangers. The Solicitor general, however, took a breathtakingly expansive view of what constitutes a work-related danger. The Supreme Court sharply denied that argument and held, “Although COVID– 19 is a risk that occurs in many workplaces, it is not an occupational hazard. … That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. 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.”
This stay issued by the Supreme Court is the first step towards a likely ruling against the constitutionally of the vaccine mandate. The Supreme Court went on to hold because “applicants are likely to prevail” on the merits of their case to declare the vaccine mandate unconstitutional, “we grant their applications and stay the rule.”
While this ruling is a great start to reigning in unchecked power to unelected agency officials, there is still work to be done. In 1928, the Supreme Court first attempted to define how Congress can delegate power to government agencies. There, the Supreme Court doctored the term ‘intelligible principle,’ which stands for the premise that when Congress delegates power, they must clearly define how the agency can act. Since this time, however, the intelligible principle doctrine has mutated into allowing a broad range of delegation power by, for example, only needing to tell an agency to act ‘reasonably’ instead of telling them specifically how to act.
Despite this grim reality that unelected bureaucrats have near unregulated power, Justice Gorsuch’s recent dissent in Gundy provides hope for the future. There, Justice Gorsuch described the specific situations in which Congress can delegate power through a defined, narrow, intelligible principle. He also previously noted that “our founders did not approve of lawmaking by bureaucrats by fiat.” With the additions to the Court of Justice Kavanaugh and Justice Coney Barrett, there is a real possibility that when the Supreme Court reaches the actual merits of the vaccine mandate case, they can provide the proper avenue to reinstating a true intelligible principle requirement and reigning in unchecked power for unelected government officials.