“The central question we face today is: Who decides?” So opened Justice Gorsuch’s concurring opinion in NFIB v. OSHA, last Thursday’s decision regarding the Biden Administration’s vaccine mandate for businesses with over 100 employees. In blocking the measure, the Court rightly understood both the answer to this question and the magnitude of its importance.
This question goes to the core of our American experience of politics. On one level, Gorsuch’s question concerned the Constitution’s two essential structures: federalism and separation of powers. Should the national or the state governments possess the power to decide whether to mandate vaccines?
Our Constitution divides political decision-making between the national and state governments. Far from a mere compromise to ratify the Constitution in 1787, allocating certain duties to the national government and others to particular governments in the states reflected a deep and learned political wisdom. This reasoning concerns what matters are best addressed by the whole country together and what is best addressed by the states according to their diverse circumstances.
The standard the Constitution set up also differs between nation and state to prove which government can do what actions. The Constitution created the national government’s power, thus requiring some declared granting of authority or rational implication from it. The states retain their powers, meaning that one must prove a state does not possess a specific power under the Constitution to find an action unconstitutional. In fact, Gorsuch said state powers “include all sovereign powers envisioned by the Constitution and not specifically vested in the federal government.”
On both counts, the Court found the Biden mandate questionable. Reasonable general health regulations – including those fighting disease – certainly fall within the scope of government regulation. Both national and state government play a role in combating COVID-19. But a vaccine mandate falls more squarely on the states than the federal government. It belongs to that general mass of powers, the so-called “police power” that confused Justice Sotomayor in oral argument, wherein states are the vanguard in protecting citizens against threats to health and safety. Given the seasonal variations of the pandemic, this capacity for a diverse approach also makes common sense.
Regarding separation of powers, our Constitution makes another division of authority – not according to the government involved but regarding the function exercised. Our Founders saw political power as divisible into separate tasks all related to ruling by laws. One function makes law (legislative), another executes it (executive), and a third adjudicates disputes according to the Constitution (judicial). Here, the genius of the Founders lay not just in dividing power so one person or entity did not amass too much, thus preserving liberty. The separation of powers also exists to make government better at lawmaking, law enforcement, and law adjudicating by creating institutions tailored to doing their assigned tasks.
Here, the Court clearly saw a problem the Biden mandate posed for this carefully crafted system so vital to both liberty and effective government. Even assuming the national government could create the mandate, did the right persons make that decision? In this case, a government agency of bureaucrats, the Occupational Safety and Health Administration, wrote and promulgated the rule. If you did not know immediately where to place bureaucrats in the constitutional scheme, you would not be alone.
The way our agencies now work – and have for over a century – often defies our Constitution’s separation of powers logic. They often write rules that resemble legislation in language and power, send their own agents to enforce it, and operate their own courts to determine disputes.
In making rules like the vaccine mandate, the bureaucracy has operated with the help of Congress and the president. Congress has written broadly worded laws that purport to govern. Yet, in actuality, they leave important decisions to agencies. The executive has allowed too much independence to these agencies in law enforcement, despite his own role as overseer of federal statutes’ execution.
The Supreme Court pushed back against all of this. In addition to Gorsuch’s concurring opinion, the Per Curium ruling (one without a stated author) noted the unprecedented nature of a government agency carrying out such a vast mandate essentially alone. It saw how far the gap had grown between lawmakers and the laws under which we live. This massive regulation of businesses, and of the lives of its workers, needed the direct approval of the branch on which the Constitution bestows lawmaking power: Congress. Congress has had the chance to provide that approval over the last two years. But Congress has not done so.
On a deeper level, Gorsuch’s question touched on another point underlying these structural points. It was a question that reached down to the foundations of all political life. To decide involves the exercise of power – but not just any power. Political power involves who rules us and for what purposes. In America, we have committed to rule of, by, and for the people. The separation of powers question of who decides ultimately leads to that fundamental point.
Quoting former Justice Antonin Scalia, Gorsuch said that judicial doctrines preserving the separation of powers sought to ward off “government by bureaucracy supplanting government by the people.” The people, through their representatives, state or national, should make this call. They should decide what best balances liberty in individual choice and safety in relation to each other.
The Court struck back at that point in the OSHA case. The same can’t be said for the healthcare worker mandate, a closer call but one that involved similar questions of structure and liberty, which it upheld on the same day. Still, we saw the Court willing to draw a line and make a stand to defend the people who should decide and the document through which they do – our Constitution.
Adam Carrington is an associate professor of politics at Hillsdale College.
