Supreme Court Ruling on Vaccine Mandates Could Have Broad Implications for Executive Branch’s Power

Supreme Court Ruling on Vaccine Mandates Could Have Broad Implications for Executive Branch's Power supreme court building (AP)

By Brian Freeman | Wednesday, 29 December 2021 09:30 AM

How the Supreme Court rules on whether to permit the Biden administration to require millions of Americans to get COVID-19 vaccines could have implications in the future for the executive branch's power to act unilaterally when implementing any regulations that try to deal with changing circumstances without waiting for the slow-moving process of congressional lawmaking, CNN reported Wednesday.

"This isn't really a case about emergency public health powers or even vaccination law, so much as it's a case about how much flexibility do administrative agencies have to respond to a problem or a threat without waiting for specific authorization from Congress," said Lindsay Wiley, a health law professor at American University's Washington School of Law.

While the court has so far refused to strike down requirements imposed by local and state entities, those implemented by the federal government pose new legal questions that the 6-3 conservative majority could look at unfavorably.

"There are different issues raised when the entity that is doing the mandating is federal, and not a state actor," said Zack Buck, a University of Tennessee College of Law professor who specializes in health law. "That goes all the way back to the founding of the country — the police power that's retained by the states. What kind of authority does the federal government have? What kind of authority do federal agencies have? And does that matter to the Supreme Court? I think the answer is, it might."

On Jan. 7, the Supreme Court will hear oral arguments on the federal mandate for healthcare workers and the testing-or-vaccine rules for large employers.

The idea that agencies are required to have explicit instructions from Congress when regulating matters of significant political and economic weight has been termed the "major question" doctrine, according to CNN.

The Supreme Court has only loosely determined when such limits come into play, but several lower courts have cited the doctrine as reason the federal vaccine mandates should not be permitted to go into effect.

"It's not itself a very clear doctrine," said Philip Wallach, a senior fellow at the conservative think tank the American Enterprise Institute. "There's not a great sense of just how badly [agencies] have to be stretching the statute to run afoul of this doctrine."

Some see an opportunity for the justices to decide whether they want to use the mandate cases before them to better define when agency actions are reaching beyond the directives of Congress.

"For all the sort of ways that [Chief Justice John Roberts] has alienated some of the conservative movement legal folks through some of his rulings, he has seemed interested in disciplining bureaucratic agencies in a number of ways," Wallach said. "And he's very interested in the separation of powers."

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