January 19, 2022
Last week’s U.S. Supreme Court decisions in two vaccine mandate cases demonstrate how relevant foundational civic questions are to current controversies.
The first case involved a regulation created by the secretary of Labor “covering virtually all employers with at least 100 employees.” The rule “require[d] that covered workers receive a COVID–19 vaccine” except “for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.” The rule would also override all state laws with different requirements.
The second case involved a regulation created by the secretary of Health and Human Services that specified that “in order to receive Medicare and Medicaid funding” medical facilities “must ensure that their staff—unless exempt for medical or religious reasons—are vaccinated against COVID–19.”
The regulations were both challenged, invoking a basic civics principle – executive branch agencies can only exercise authority granted them by Congress. So, for the rules to be upheld, the court would need to be convinced that Congress had enacted legislation that gave the agencies involved the authority to create the rules.
In our constitutional system, roughly speaking, Congress enacts laws, and the executive branch (including administrative agencies) enforces them. The process of enforcement may require establishing guidelines for enforcement.
To use a simple example, in the early 1970s, Congress passed Title IX prohibiting sex discrimination in education. That, of course, is a broad policy statement. How would it apply to athletics? That would have to be determined by the agency responsible to enforce the law. So, eventually the Department of Education would determine that a university could show that it complied with the law (i.e., did not discriminate) if the number of female athletes were roughly proportional to the percentage of women in the student body.
Of course, this guideline becomes another source of law, but it would be invalid if it were not tied to the initial statute created by Congress.
This is where the courts come in. If an individual or organization regulated by the agency believes the agency rules exceed the authority granted them by Congress, they can challenge the rule, as the states and business organizations impacted by the vaccine mandates did.
It’s not clear that this is what the framers of the Constitution intended, though it has become a common pattern. For the framers, Congress was responsible to check any executive branch excesses. If the executive branch were inclined to overreach, Congress would enact or adjust a law to end that overreach.
Subsequent developments have unsettled that pattern. The rise of administrative branch agencies in the 20th century was premised on a notion that Congress was not necessarily best suited to establish laws on complex modern problems. Rather, Congress could give broad direction but leave authority for the experts in the administrative agencies to create specific rules.
While the framers intended Congress, as the representative branch with close accountability to voters, to create the law, it can be tempting for Congress to leave difficult, and controversial, subjects to the agencies in the hopes of escaping some accountability for difficult decisions.
The president also has a temptation – to take on policy initiatives beyond his or her authority and point to broad congressional statements as excuse. That temptation may be particularly acute where a possible action can be justified by an emergency (like the pandemic).
Taken together, these two factors mean Congress often does not serve as an effective check on executive overreach.
So, people have turned to the courts to provide a check on the executive branch in such situations. That is what is at work in last week’s decisions.
Regarding the large employer mandate, a majority of the court (6-3) determined the Department of Labor had overreached. The court looked at the language that provides the legislative mandate of the Occupational Safety and Health Administration. That language tasks OSHA with ensuring “safe and healthful working conditions.” Since the vaccine mandate regulated public health, rather than workplace conditions, the mandate exceeded agency authority.
By contrast, a narrower majority (5-4) concluded that the Health and Human Services mandate was justified by the relevant legislative language. That language allows the secretary to make conditions on receiving federal funds “necessary in the interest of the health and safety of individuals who are furnished services.” So the majority there upheld the mandate.
(The majority in the second case included Chief Justice John Roberts and Justice Brett Kavanaugh, who had joined the decision striking down the employer mandate.)
The practice of a judicial check on executive agencies, as illustrated by these decisions, has become well established today. Its primary disadvantage is that it relieves Congress from public pressure to rein in the executive branch. But in a time when Congress regularly neglects its institutional role as a check on the executive out of partisan interest, the judiciary checking the executive may be necessary.
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