A Major Question of Power: The Vaccine Mandate Cases and the Limits of Executive Authority

Abstract

In January 2022, the Supreme Court decided two major cases reviewing the legality of sweeping Covid-19 vaccine mandates imposed by the Biden Administration. In National Federation of Independent Business v. Occupational Safety and Health Administration, a 6-3 ruling invalidated a regulation requiring employers with 100 or more workers to compel nearly all of them to get vaccinated against Covid or wear masks on the job and take regular Covid tests. In Biden v. Missouri, decided the same day, a 5-4 Court upheld a Centers for Medicare and Medicaid Services (CMS) policy requiring health care workers employed by institutions receiving federal Medicare and Medicaid funds to get vaccinated.

Both cases addressed large-scale policies that were significant in their own right. The two cases also have important implications for the scope of executive power to set regulations (NFIB) and impose conditions on federal grants to state and local governments (Biden v. Missouri). The majority was justified in striking down the OSHA employer mandate because Congress had never clearly authorized it, and also justified in upholding the CMS mandate because it was backed by far more unequivocal statutory authorization.

NFIB v. OSHA reaffirmed important constraints on the executive’s power to decide a “major question” of policy on its own, while also giving an indirect boost to constitutional nondelegation constraints on the transfer of legislative power to the White House and the administrative state. For its part, Biden v. Missouri makes clear that the executive can exercise reasonable discretion when Congress does clearly authorize it, particularly in the context of attaching conditions to federal grants to state and local governments.

Part I of this article provides a brief overview of the history of the two cases and the policies they address. It is particularly notable that both were sweeping emergency measures enacted in response to the Covid pandemic, and both reached the Supreme Court on a heavily expedited basis. I also summarize the Supreme Court’s rulings. Part II defends the outcome in NFIB v. OSHA, but also criticizes key elements of the Court’s reasoning.

Part III assesses Biden v. Missouri. In this case, the Court’s statutory reasoning is compelling. But the justices erred in failing to address some crucial issues related to Congress’s Spending Clause authority to set conditions on federal grants to state and local governments. Finally, part IV considers some broader implications of the two rulings. Americans across the political spectrum have much to gain from judicial enforcement of limits on executive power. The kind of sweeping unilateral authority the Biden administration claimed in NFIB could easily have been misused by future presidents of both parties. The Court’s sensible statutory interpretation in Biden v. Missouri also bodes well for the future.

Keywords: Vaccination, major questions, Covid-19, mandate, nondelegation, emergency powers, Supreme Court, Spending Clause, Federalism, clear statement rules, executive power

JEL Classification: H11, H41, H70, H71, H77, I1, I11, K00, K1, K10