By Wendy Parmet and Dorit Reiss
This Friday, the Supreme Court will hear arguments about two federal vaccine mandates: the Centers for Medicare and Medicaid Services’ (CMS) mandate for health care workers, and the Occupational Safety and Health Administration’s (OSHA) vaccine-or-test mandate for employers with over 100 workers. In each case, a key question will be whether the Court should apply the so-called “major questions doctrine.” The Court’s adoption of this approach in the mandate cases would not only remove an important tool for combating the pandemic; it also would severely limit the federal government’s capacity to address many other health threats, while expanding the Court’s ability to substitute its judgment for Congress’.
Although not fully defined or delineated, the major questions doctrine bars administrative agencies from using broad grants of statutory authorities in new and “major” ways. A type of clear statement rule, it requires courts to presume that in the absence of specific Congressional authorization, agencies lack the power to issue new regulations that could be seen as “major.”
In theory, the rule allows courts to avoid federalism and separation of powers concerns. In practice, it empowers courts to resurrect long-discarded approaches to federalism and separation of powers without saying so. It also enables courts to disregard explicit grants of statutory authority (so much for textualism!).
Delegation of Public Health Powers
Both the states and the federal government have long relied on broad delegations of authority to administrative agencies to protect the public’s health. As far back as the nineteenth century, state legislatures recognized that they could not foresee nor did they have the expertise to determine the measures necessary to protect their residents from the repeated epidemics that struck the nation. In response, they established professional boards of health, and granted them broad powers to take whatever actions were necessary to protect public health.
Despite the breadth of the delegation, courts generally upheld the boards’ authority. In 1905 in Jacobson v. Massachusetts, the Supreme Court explained the rationale behind such broad delegations, stating: “The authority to determine for all what ought to be done in such an emergency must have been lodged somewhere, or in some body; and surely it was appropriate for the Legislature to refer that question, in the first instance, to a board composed of persons residing in the locality affected and appointed, presumably, because of their fitness to determine such questions.”
Unlike the states, the federal government is one of limited powers. It does not have general police powers. Nevertheless, the Supreme Court has long accepted that Congress can use its enumerated powers to protect health. In addition, since the New Deal, the Court has permitted broad delegations of authority to administrative agencies so long as they include an “intelligible principle.” In 2001, in Whitman v. American Trucking Association, the Supreme Court held that by requiring the Environmental Protection Agency (EPA) to set ambient air quality standards that “are requisite to protect the public health,” the Clean Air Act provided such a principle.
Power in a Pandemic
Unquestionably, the pandemic has tested the limits of public health powers. Early on, governors and health agencies used their broad powers to shutter businesses, block interstate travel, ban elective surgeries, and limit indoor worship. More recently, some have mandated masks and vaccines in certain sectors. The breadth of these measures, plus the increasing political polarization and backlash, has led to a tsunami of litigation.
Most of the litigation has focused on individual rights claims, but some courts have raised non-delegation concerns. For example, in early 2020 in Wisconsin Legislature v. Palm, the Wisconsin Supreme Court stated that it had to read the Secretary of Health’s powers narrowly to avoid an impermissible delegation of legislative authority.
In early 2021, a few federal courts expressed similar separation of powers concerns to block CDC’s eviction moratorium. For example, in Tiger Lily v. United States Department of Housing and Urban Development, the Sixth Circuit ruled that the specific measures set forth in Sec. 264(a) of the Public Health Services Act, which grant CDC the power to “provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected…” constrain its ability “to make and enforce such regulation as in [the agency’s] judgment are necessary to prevent the introduction, transmission or spread of communicable diseases … from one State or possession into any other State or possession.” In so doing, the court explained that a “broad construction” of the Act would raise “not only concerns about federalism, but also concerns about the delegation of legislative powers to the executive branch.”
Then, in August 2021, the Supreme Court focused on federalism as a rationale for ruling that the moratorium exceeded CDC’s power under the Public Health Services Act. Although the Court’s per curiam decision (from the shadow docket) in Alabama Association of Realtors v. Department of Health and Human Services did not use the term “major questions doctrine,” it stated, “We expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast ‘economic and political significance.’” In so doing, the Court quoted from Food and Drug Administration v. Brown & Williamson Tobacco Corp, and Utility Air Regulatory Group v. EPA. Both cases were easily distinguishable. In both, the agencies sought to use broad authority to reverse longstanding policies in the face of other statutory language that was inconsistent with their new measures.
Neither feature applies to the vaccine mandates. The agencies imposing them have never held that they lacked the authority they now seek to exercise; nor are their mandates inconsistent with other federal statutes. In fact, both the OSH Act and the statute authorizing Medicare and Medicaid explicitly grant those agencies broad powers to impose safety measures in, respectively, the workplace and health care facilities.
Some Problems with the Major Questions Doctrine
Nevertheless, the judges who have rejected the vaccine mandates have emphasized the so-called major questions doctrine. For example, in enjoining CMS’ requirement that health care workers be vaccinated, Judge Matthew T. Schelp of the Eastern District of Missouri stated, “Courts have long required Congress to speak clearly when providing agency authorization if it (1) intends for an agency to exercise powers of vast economic and political significance; (2) if the authority would significantly alter the balance between federal and state power; or (3) if an administrative interpretation of a statute invokes the outer limits of Congress’ power.”
There are a number of problems with this. First, as suggested above, it sits uneasily alongside contemporary approaches to both the non-delegation doctrine and federalism. If Congress is using its enumerated powers, and has provided an intelligible principle, and if the agency has abided by that principle, what is the justification for requiring Congress to explicitly authorize the regulatory action?
Second, while ostensibly protecting Congress’ prerogatives, such a requirement would effectively tie its hands, requiring Congress — an institution that is hardly renowned for its capacity to act with alacrity — to enact specific legislation to address almost any new — and perhaps many not-so-new — problems.
Defenders of the doctrine may argue that it presents no threat to either Congress or health because it is limited to major questions. But they offer no principle for deciding what makes a question major. Critics of the vaccine mandates have argued that they are unique because of their nationwide scope, but federal regulations are usually nationwide, and many affect large swaths of the economy.
The mandates’ purported novelty also doesn’t hold up to scrutiny. As both the Eleventh and Sixth Circuit decisions upholding the mandates have shown, the agencies in question have issued many regulations that address the spread of communicable diseases. And surely the fact that they have not previously imposed a vaccination requirement during a pandemic cannot justify striking the mandates. Rather, the novelty of our current predicament illustrates why Congress grants broad authority: so that agencies can act when new risks arise.
This points to the most serious problem with the doctrine. In the absence of principled guidelines, the doctrine serves as a major transfer of federal policymaking power from the elected branches to an unelected and unaccountable judiciary, which gets to pick which questions are major and which are not. Worse, it offers those who are regulated yet another way to challenge any and all federal health regulations, allowing litigation to become our primary means of making public health policy.
Critics of the vaccine mandates may believe that the doctrine can be cabined without imperiling all of the federal health and safety laws that we have come to take for granted. They may not think that rules designed to prevent the spread of antibiotic-resistant infections in hospitals or universal precautions in dental offices will be threatened, but they will be, as judges replace health experts as the overseers of health policy.
Even if we were not in the middle of a pandemic, a doctrine that essentially allows courts to strike down willy-nilly policies that they deem “major” — even when those policies fall easily within statutory grants of authority and are not in themselves unconstitutional — undermines the federal government’s capacity to govern, while adding yet more power to the judiciary. In the middle of a pandemic, it will also cost lives. The Court should refrain from going down such a path.