Late Friday, the Sixth Circuit Court of Appeals came down with a decision upholding Joe Biden’s vaccine mandate for large businesses. Under a process that consolidates challenges to the law, the Sixth Circuit’s decision supersedes and vacates the stay against the mandate issued earlier by the Fifth Circuit.

The substance of the ruling is of course critical as we fight yet another Covid surge nationwide, but the legal fireworks in the decision is just as important, since it goes to the heart of the Federalist Society movement to legally dismantle the administrative state as unconstitutional.

The Sixth Circuit would have none of that, but since the Supreme Court will no doubt rule on the matter, the question is whether the right-wing Court Justices will use this case as the vehicle to take down not just the vaccine mandate but begin eliminating the power of administrative agences from the EPA to the Federal Communications Commission.

Administrative law is not seen as sexy as some other areas of constitutional law, but as I tell my students in my administrative law classes, on phases like “Chevron deference” and “nondelegation doctrine” hang the flexibility and very existence of most regulatory policy we take for granted.

So let’s take a quick tour through these key doctrines and how the Sixth Circuit eviscerated the decision of the conservative Fifth Circuit - and what this may mean at the Supreme Court.

Chevron Deference

The most basic issue courts face is what to do when Congress passes a law with broad and possibly vague grants of authority to an administrative agency like the Occupation Health and Safety Administration (OSHA)? Who should decide where that authority ends?

One answer is that judges should decide this and interpret the law however they think appropriate. The other answer, and the one that the courts have officially followed for decades, is that as long as the interpretation of the law by the administrative agency in question is reasonable, the courts won’t second-guess that interpretation even if they would have chosen a different interpretation themselves, because, heck, maybe an elected President should have more say over policy than unelected judges.

This latter position is known as Chevron deference, named for a case Chevron v. NRDC (1984), which annunciated the doctrine in a case where liberal Justices agreed with their colleagues to defer to a pro-corporate interpretation by the Reagan Administration of the Clean Air Act.

In the new Sixth Circuit decision, a concurrence by Judge Gibbons summarized the judicial modesty implied by the Chevron doctrine:

I write separately to note the limited role of the judiciary in this dispute about pandemic policy.
Reasonable minds may disagree on OSHA’s approach to the pandemic, but we do not substitute our judgment for that of OSHA, which has been tasked by Congress with policymaking responsibilities. See Charles D. Bonnano Linen Serv., Inc. v. NLRB, 454 U.S. 404, 418 (1982). This limitation is constitutionally mandated, separating our branch from our political cobranches. “[F]ederal judges—who have no constituency—have a duty to respect legitimate policy choices made by those who do.” Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 866 (1984). Beyond constitutional limitations, the work of an agency, often scientific and technical in nature, is outside our expertise. See Kisor v. Wilkie, 139 S. Ct. 2400, 2413 (2019).
Our only responsibility is to determine whether OSHA has likely acted within the bounds of its statutory authority and the Constitution. As it likely has done so, I concur.

The full decision goes into some detail on the multiple times Congress has tasked OSHA with preventing the spread of contagious diseases in the workplace, the most recent being language to that effect in the American Rescue Plan referencing OSHA’s responsibility to “to carry out COVID-19 related worker protection activities.”

What will the Supreme Court do with this portion of the Sixth Circuit’s decision? Justice Neil Gorsuch as argued in multiple decisions that courts should ignore Chevron deference and instead interpret statutes as they think appropriate and thereby constrain the power of administrative agencies: Gorsuch’s views are part of the whole Federalist Society agenda to treat Chevron deference as an unconstitutional transfer of power to the executive branch.

The question is whether Gorsuch will have five votes to make his views official Court doctrine when the case reaches the Supreme Court.

The Major Questions Doctrine

One recognized exception to Chevron - although one rarely invoked - has been what is called the “major questions doctrine,” namely the idea that if an administrative decision “brings about an enormous and transformative expansion” of regulatory authority the Court should ensure that power was part of Congress’s intention.

In this case, the Sixth Circuit noted OSHA has such extensive and repeated grants of authority over contagious diseases in the workplace that it’s hardly an unexpected expansion of its authority. The Sixth Circuit itself had applied this doctrine when it vacated the CDC’s nationwide moratorium on evictions as beyond what Congress had intended the CDC’s role should be. But as they note, while the CDC being involved in housing markets was a novel regulatory move, “OSHA’s [vaccine mandate] is not a transformative expansion of its regulatory power as OSHA has regulated workplace health and safety, including diseases, for decades.”

There is a sub debate here of whether OSHA’s actions were an expansion of its “emergency action” authority which allows fast authorization of regulations in times of “grave danger.” That the Sixth Circuit feels the need in its decision to go on for pages explaining how Covid spreads in enclosed indoor spaces highlights how insane our public discourse has become that 800,000 dead American isn’t automatically understood to be a “grave danger.”

Commerce Clause Challenge

The Fifth Circuit had argued that the Biden vaccine mandate was unconstitutional since it regulated “noneconomic inactivity” and thus involved authority reserved exclusively to state governments.

This is the same line of arguments invoked to strike down the ban on guns in school zones in the Lopez case, the right of women to sue their rapists under the Violence Against Women Act in the Morrison decision, and that deemed the individual insurance requirement under the Affordable Care Act to be unconstitutional in the Sebelius decision (even if Justice Roberts saved the law citing to the alternative of the federal taxation power).

The argument is that refusal to get a vaccination is non-economic but the Sixth Circuit highlights the key difference here- this is NOT a regulation of individuals as with those other cases, but regulation of businesses, where federal commerce power is clear. While there was debate on whether individuals could be required to have insurance, “no Justice doubted that Congress could, under the Commerce Clause, require employers to provide health insurance to their employees.”

Now, the rightwing Supreme Court may decide to extend their states rights ideology to the vaccine mandate, but if the government cannot regulate actions by businesses related to “noneconomic activity,” the Sixth Circuit notes that this likely translates into abolishing regulations prohibiting racial and gender discrimination in the workplace as well since a “person’s choice to discriminate against another based on race is ‘noneconomic activity.’”

But then, we know the endpoint of “states rights” has always been to abolish anti-discrimination legislation, so the current Supreme Court may happily go there. But recognize that the attack on the vaccine mandate is part of that agenda.

The Non-Delegation Doctrine

The most radical attack on the vaccine mandate is based on what’s known as the “non-delegation doctrine,” the idea that Congress does not have the constitutional right to give administrative agencies the right to make regulations, that in fact Congress must write those regulations into law itself.

The goal of this doctrine is to paralyze the administrative state and count on legislative gridlock to allow corporate power free reign, since conservative jurists know Congress will have neither the time, expertise, or political will to keep up with ever-evolving threats to public safety, workers rights, and racial equity.

As the Sixth Circuit details, since the New Deal, the courts have given Congress the right to delegate authority to executive branch agencies to generate regulations based on the policy goals articulated by Congress. It cited to a quite recent 2019 decision Gundy v. United States, that stated clearly, "Congress “may confer substantial discretion on executive agencies to implement and enforce the laws.”

The rub here is that Gundy had only a five-person majority, one of whom, Ruth Bader Ginsberg, has since been replaced by Amy Coney Barrett. More importantly, Justice Alito, who concurred in the majority decision, did not sign onto their reasoning and said he was willing to gut the power of the administrative state: “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” There wasn’t a majority then, but there may be one now.

What will the Supreme Court Do?

The stakes in the final decision by the Supreme Court in ending the pandemic is very real, but the stake for a wide range of administrative and constitutional law is if anything even higher. This case may become the vehicle for the Supreme Court to largely destroy the regulatory state as we know it.

Whether some degree of caution leads them to take half measures in that direction is unknown, but there is plenty of reason to believe that the Sixth Circuit’s decision is a temporary lull in the constitutional storm about to hit.

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