The Volokh Conspiracy
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Yesterday, the Supreme Court heard nearly four hours of argument about vaccine mandates. Throughout the entire session, one question popped up over and over again: Who Decides? Who should decide to impose a vaccine mandate: Congress, the states, the agencies, the courts? Judge Sutton's new book eloquently addressed this important question. And I suspect several of the Justices and the advocates have been thinking about Judge Sutton's question, as have I.
During the first argument, Scott Keller, who represented NFIB, was answering a question from Justice Breyer. He concluded his remarks "The question is not what is this country going to do about COVID. It's who gets to decide that." Justice Kagan jumped in and said "Well, who does get–" Chief Justice Roberts interrupted her and said, "Maybe, at this point, we can go justice by justice." Come, on Chief!? At that moment, I knew exactly what Kagan was asking. And when Kagan's turn came during the lightning round, she jumped right into it.
JUSTICE KAGAN: Mr. Keller, your -your very last comment in your first part of your argument I want to come back to because your very last sentence, you said the question is, who decides? And I think that that's right. I think that that is the question.
Unsurprisingly, Kagan would answer that question differently than NFIB. She would let the expert agencies, who work for the accountable President, decide.
JUSTICE KAGAN: Respectfully, I –I think it has a different answer than the one that you give, so I'll just sort of put a different version of it to you, which is, you know, you're –I'm sure you're right that there are all kinds of public health and economic tradeoffs that have to be made in a policy like this, all kinds of judgments on the public health side, on the economic side, how those two things ought to be balanced against each other.
So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there's no political accountability. If people like this policy, they'll go to the polls and vote it that way. If people don't like it, they'll vote that way.
This is a publicly –a politically accountable policy. It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question? …. And why is it that courts would displace that judgment and say it is up to us to decide about vaccination policy in the employment settings of this country?
Presidential administration at its finest.
Justice Breyer also asked a variant (no pun intended) of Kagan's question:
JUSTICE BREYER: Should it be that we decide, you know, as against what the Secretary has decided, in performing his important function of evaluating these potential disruptions and weighing those disruptions against the health benefits that he sees in that rule? Should we say we think that the –that the disruptions are more, greater than the Secretary thought and we further would weigh them differently against the health benefits of the rural? Is that for courts to decide?
Justice Kavanaugh picked up on the theme of who decides.
JUSTICE KAVANAUGH: I want to follow up on Justice Kagan's who decides question because I do think that gets to the --the heart of this.
But Kavanaugh approached the question differently. He asked about the major question doctrine, and whether Congress wanted OSHA to decide this question:
JUSTICE KAVANAUGH: You're relying on the major questions canon in saying that when an agency wants to issue a major rule that resolves a major question, it can't rely on statutory language that is cryptic, vague, oblique, ambiguous.
(A brief admin-law detour. The word "cryptic" here is important, because it has a different connotation than "vague" or "ambiguous" in the Chevron context. In other words, the major question doctrine would still apply even if a statute is not ambiguous. Kavanaugh repeated the word "cryptic" several other times, so he has telegraphed how he would apply the major question doctrine. Back to who decides.)
Justice Gorsuch also returned to the question of "who decides." He too framed the issue at whether the "appropriate party" gets to make these regulations. Has Congress given OSHA this power?
JUSTICE GORSUCH: Mr. Flowers, I'd like to return to the question of --of who decides. And I think we've all kind of come to the point where we all agree that states have --have a wide police power under our constitutional system that Congress has to regulate consistent with the Commerce Clause and --and make the major decisions while agencies can do the work that Congress has given them to do but not other kinds of work. And the major questions doctrine kind of regulates that interaction between Congress and agencies.
So it's not that judges are supposed to decide some question of public health. It's about regulating the rules of the system to ensure that the appropriate party does.
And so the question in my mind really turns a lot on the major questions doctrine in this case. Is this one that has been given to the agencies to decide or one that Congress has to make as a major question under our federal system? And I haven't heard a lot of discussion about that.
The Solicitor General says that the major questions issue only comes into play when a statute's ambiguous, and I'd like to give you an opportunity to explain your view.
Ben Flowers, the Ohio Solicitor General, directly addressed the "who decides" question during his opening remarks:
To Justice Kagan's question about the who decides point, Congress tell --told us who decides at 2112 --28 USC 2112 says that courts can issue stays, and the reason for that is they recognize that this was without notice and comment, and unless the courts could step in to abate illegal actions, nobody would be able to do so. And that's especially important here, where the --the action they're, in our view, mandating but at least strongly encouraging, vaccination, cannot be undone.
And Scott Keller addressed the "who decides" question during his rebuttal.
And my second point to close on is about who decides in the public interest. And I would submit that this Court's precedents answer that. We're not asking this Court to reverse anything. Industrial union 40 years ago in Justice Stevens's controlling opinion says that there was an absence of a clear mandate in the OSH Act, so it's unreasonable to assume that Congress gave OSHA unprecedented power over American industry and the emergency power is also narrowly circumscribed, yet here OSHA has never before done mandated vaccines or widespread testing much less over all industries or on an emergency basis.
Everyone should read Judge Sutton's important book. My review of Who Decides? should be out later this month.