What the Supreme Court’s Vaccine Case Was Really About

Of the six justices in the majority, three pressed the point even further. In a concurring opinion, Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, wrote that OSHA had failed to meet the test of something called the “major questions doctrine.” (Justice Gorsuch asserted that the majority as a whole “rightly applies the major questions doctrine,” a baffling claim because the phrase doesn’t appear in the opinion that speaks for all six; the remaining three were Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.)

The major questions doctrine is a recent invention of conservative judges that purports to require explicit congressional authorization for an agency action that resolves “a question of vast national significance,” in Justice Gorsuch’s words. Its obscure origins are frequently ascribed to the court’s decision in 2000 holding that the Food and Drug Administration lacked authority to regulate tobacco products.

True, in that case, Food and Drug Administration v. Brown & Williamson Tobacco Corporation, the court found that the federal Food, Drug and Cosmetic Act did not give the agency the power it was seeking to exercise. And the decision contained the “vast national significance” language that Justice Gorsuch quoted. But it is almost impossible to read the decision as giving birth to a new doctrine of administrative agency disempowerment. For one thing, as the court emphasized, until the case arose in 1995, the F.D.A. had spent decades disavowing authority to regulate tobacco. And Congress had repeatedly refused to give the agency that power. It did not take a new doctrine, under whatever label, for the court to conclude that Congress had to be the one to change the status quo.

In his OSHA opinion, Justice Gorsuch cited a more recent case as endorsing a major questions doctrine. That was the court’s decision in August blocking a Covid-related national eviction moratorium issued by the Centers for Disease Control and Prevention. The court said that “it strains credulity” to believe that the Public Health Service Act, on which the C.D.C. relied, authorized the agency to take such action. Whatever the merits of that conclusion, the eviction moratorium was certainly a reach, and it strains my credulity to find it in any way analogous to OSHA’s effort to protect workers’ safety and health through the vaccine rule that, as the dissent noted, “lies at the core of OSHA’s authority.”

The decision blocking the OSHA rule, along with a companion decision in which the court refused, by a vote of 5 to 4, to block a vaccine mandate for workers in the health care industry, are not final judgments. The cases now return to their respective courts of appeals for further review. They may return to the Supreme Court, although given that an emergency OSHA rule can last no more than six months (a limiting factor that the OSHA decision obscures), they well may not. But in any event, it’s certain that we have not heard the last of the major questions doctrine or the war on the administrative state.

That Justice Gorsuch, with his penchant for folksy aphorisms, has become the show horse of the court’s far right shouldn’t deflect attention from his less showy but equally determined partner in the campaign to bring down the administrative state, Justice Alito.

Among the more head-snapping moments during the nearly four hours of argument in the two vaccine cases on Jan. 7 came with Justice Alito’s comments in the OSHA argument to Solicitor General Elizabeth Prelogar.

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