jonathanturley | The defenders of the mandates worked mightily to avoid the fact that it’s the first-ever national vaccine mandate and was decided without the approval of Congress. Chief Justice John Roberts, a vital vote needed by the administration, noted that this administration was relying on language passed roughly 50 years ago — closer to the Spanish Flu than the novel coronavirus — and stated ominously, “This is something the federal government has never done before.” That sounds not just like a question but a major one.
The major-questions doctrine maintains that courts should not defer to agency statutory interpretations when the underlying questions concern “vast economic or political significance.”
The controversy over the mandates shows the wisdom of the doctrine demanding that Congress not only take action but responsibility, too, for such major decisions.
With increasing confusion over changing CDC guidelines and the risk profile associated with the Omicron variant, congressional action could bring both greater legitimacy and clarity to questions swirling around mandates.
Instead, the Supreme Court is grappling with an executive move that was openly discussed not only as an avoidance of Congress but a circumvention of constitutional limitations.
It was not a good sign for the administration that the most referenced individual during oral argument was Biden’s chief of staff, Ron Klain, who tweeted that the mandates were “workarounds” of the Constitution. Chief Justice Roberts, Justice Neil Gorsuch, and others referred to Klain’s admission as the administration’s lawyers tried to argue that the executive had the constitutional authority to implement a national mandate.
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