The Vaccine Cases and Administrative Power

Abstract

The legal question was basically the same in both of the Supreme Court’s big 2022 federal vaccine mandate cases. It boiled down to whether a federal agency—the Department of Health and Human Services in one case, the Occupational Safety and Health Administration in the other—exceeded the statutory authority that Congress has granted to it. This brief case comment analyzes why the majority upheld the HHS mandate but struck down the OSHA one. A lot came down to past HHS and OSHA regulations to inform the limits of each agency’s authority. Namely, HHS has routinely issued conditions that obligate participating facilities to protect patient health and safety. The vaccine mandate went further than past HHS regulations—after all, the agency had previously been able to rely on compliance with state requirements—but fit within its longstanding practice of protecting healthcare workers and patients. OSHA lacked this historical precedent. By contrast, OSHA had never before issued a regulation “addressing a threat that is untethered, in any causal sense, from the workplace,” in the sense that COVID-19 is a hazard encountered wherever people gather, not just at work.

Keywords: federal agency, statutory authority, separation of powers, Biden Administration, Chevron, vaccine mandates, exemptions, public health