Tomorrow, the Supreme Court returns early from its holiday recess to confront a controversy that may well rank as one of the most important in modern constitutional history. But it will be doing so by a peculiar and rushed procedure, one that it very seldom uses.
In the two hours of scheduled hearings Friday morning, the Court will put itself in position to give profoundly important guidance on how far government can go to try to stop or at least manage the spiraling sickness and death toll in the Covid-19 pandemic.
The Court will be acting as the constitutional arbiter of America’s “vaccination wars,” the bitter, emotional and politically divisive feud over vaccine shots, testing, masks and social distancing. (All nine Justices, each full vaccinated and having had booster shots, will be on the bench tomorrow morning. The audio of the hearings will be broadcast; see below.)
At the center of the “pandemic cases” are two highly complex orders of the federal government that, together, will reach almost 265 million Americans. Seldom, short of wars or during the Great Depression of the Thirties, have national powers been used with such sweeping breadth.
The outcome of these cases, of course, will be of basic importance to a nation reeling from nearly two years of a deadly health crisis and looking, anxiously, for ways to cope. But the appeals could also be deeply significant for what the outcome could say about how power is distributed among the three branches of the national government, with truly lasting effects.
The paradox that will unfold, though, is that the Justices will be examining appeals which technically are not on the Court’s docket yet – it has not granted review of whether the two government orders are legally valid; that will come later. Moreover, the appeals involve disputes on which no lower court has yet issued a final ruling. The Court is reaching out – at the most preliminary stage — to guide pandemic policy and maybe, if it chooses to act boldly, to actually render a final constitutional decision on whether the directives are legally valid.
Some of the challengers have urged the Justices to go ahead, leap-frog lower courts and decide that ultimate question right away.
The Justice Department, however, has told the Court that it probably does not have the authority to do that. That argument could take the Court all the way back to its landmark decision in 1803, Marbury v. Madison, the first major ruling to define the scope of the Court’s power to review appeals. The Department’s advice, though, may not be binding if the Court wishes to go ahead on a new path.
Scheduled for the Friday hearings are these cases:
Starting at 10 a.m.: National Federation of Independent Business and other private entities v. Labor Department, combined for one hour of hearing with Ohio and 26 other states v. Occupational Safety and Health Administration [OSHA}. These appeals involve requests to block enforcement of the OSHA directive for vaccinations or weekly testing of workers and mask-wearing in all private companies that have 100 or more employees. Reaching about 84.2 million people, the OSHA directive technically can be enforced everywhere but the agency has temporarily put off enforcement of the vaccination policy until January 10 and the testing policy until February 9.
Hearing starting at about 11:30 a.m.: President Biden v. Missouri and 9 other states, combined for one hour of hearing with Health and Human Services [HHS] Secretary Xavier Becerra v. Louisiana and 13 other states. These two appeals involve the Biden Administration request to enforce nationwide an HHS vaccination directive for workers and patients in hospitals and other care facilities, including nursing homes, that have agreed to accept funds under the Medicare program for the aged and the disabled and the Medicaid program for the poor. That order, applying to about 180 million people, has been temporarily blocked in 25 states by lower federal courts. It can be enforced elsewhere.
The two directives, which the federal government refuses to call “mandates,” are embedded in two documents heavy with dense bureaucratic prose, totaling 232 pages.
Both orders were issued November 5 after President Biden ordered government-wide action to try to deal with the Covid-19 pandemic as winter approached with infections continuing to spread across the U.S., complicated more recently by the new Omicron variant, and a death toll continuing to rise toward 1 million.
In response to these directives, a legal drama began to play out in federal courts – a judicial drama in three acts. First, the orders faced a cross-country wave of challenges in federal courts, focused on whether the orders could be enforced, not on whether they were legally valid. Second, the Supreme Court got involved but, again, the only issue there – at least so far – is whether to allow enforcement. And, third, the lower courts and then, probably, the Supreme Court will decide whether the orders do or do not violate the Constitution and federal laws.
Tomorrow’s Supreme Court hearings, then, are the second act. The drama has unfolded rapidly, taking just over six weeks to reach the Supreme Court in 14 appeals, from which the Court chose four for its initial look.
To understand just how novel is the procedure the Court is following in these cases, consider the basic ways that the Court normally does its work:
First, the largest proportion of its work is the review of final decisions that lower courts have issued, accounting for some 70-75 cases per term. Second, in only three or four cases per term, the Court decides cases that the Constitution assigns only to the highest court, such as border disputes between states – cases in which there is no lower court decision to review.
In both of those categories, the Justices accept cases for final decision, gather extensive legal briefs not only from the two sides in each case but also from scores of interested outsiders filing their own legal briefs, hold a full-dress hearing with all nine Justices on the bench, followed by months of deliberations and then reaching a fully-explained final ruling.
There is a third category: cases on an emergency docket. Those involve requests to the Justices to issue temporary orders that will control what the two sides in a dispute can or cannot do, while awaiting actual rulings on their dispute in lower courts or in the Supreme Court. Almost never does the Court go to the bench to hold a hearing on these cases; these emergency requests involve limited briefs and are handled promptly in private, often by a single Justice, until a temporary order emerges – often with little or no explanation.
The “pandemic cases” reached the Court on this emergency docket. But the Court has opted to deal with them by borrowing parts of the first two categories: accepting extensive briefs from parties and interested outsiders, and holding hearings. It is also highly unusual for the Court to hold a hearing on any matter on a Friday. Tomorrow’s session will come three days before the Justices had been scheduled to return to the bench after a mid-winter break.
The question before the Court: Will the Court, at least temporarily, allow or block enforcement of either or both of the vaccination directives while their validity is being tested in the courts?
That is the focus of the drama’s second act. There are legal standards that control how the Court will answer that overall question. Its answers will come in a form that will look at lot like predictions about how the third act will come out in the end – predictions about the legality of the directives and how they will affect the people covered by the pandemic-control orders.
What are the issues the Justices and the lawyers will be discussing Friday, to prepare the Court to make those predictions? They are:
- In creating OSHA in 1970 to monitor workplace safety and health and in creating Medicare and Medicaid in 1965 to assure health care for the elderly, the poor and the disabled, did Congress give federal agencies the power to issue nationwide directives to require vaccinations or regular disease testing to deal with a viral pandemic? (Compulsory vaccination has existed as a public health policy since the 1850s, but has never before been ordered on such a scale.)
- Did the agencies have emergency powers to issue the directives without first conducting deep and penetrating analysis – with real input from the public — on the need for such regulations by the national government?
- Did the agencies intrude on Congress’s exclusive power under the Constitution to enact new laws? Did the agencies also usurp the power of the courts to interpret the reach of federal laws?
- Did the agency directive on facilities that get Medicare and Medicaid funds intrude unconstitutionally on the religious freedom of faith organizations that operate such facilities?
- Did the agencies intrude unconstitutionally on the power of state governments to be the primary level of government protecting people’s health — an assignment that supposedly is reserved to the states under the Constitution’s Tenth Amendment and its limits on federal powers?
- When federal agencies undertake sweeping action that has widespread economic and political repercussions, can they do so only if Congress has clearly and specifically authorized them – in advance — to take that very action? And, need courts defer to such broad governmental action if Congress has not explicitly given its permission?
How the Court deals, even in a preliminary way, with that Question No. 6 could give these cases historic rank, even beyond what they do to shape the federal government’s ongoing reaction to the covid pandemic.
Indeed, that question could bring distinctive echoes of the great constitutional battles more than 80 years ago between a deeply conservative Supreme Court and President Franklin Roosevelt and his ambitious New Deal initiatives. Those battles included the last time (in 1935) that the Court struck down a federal program on the theory that an agency used legislative power that belongs to Congress and cannot be delegated.
Just as in the Thirties, the present Court has a strong conservative majority, one that has shown signs that it is getting ready to help revive that so-called “non-delegation doctrine” or some variation of it. For decades, conservative politicians, academics and advocacy groups have looked for ways to pare down the size of the “administrative state” – the bureaucratic behemoth that is today’s federal Executive Branch.
That movement has gained followers in recent years, with the result that federal courts are becoming less willing to defer to the technical expertise of federal agencies, especially when those agencies undertake wide-ranging new controls on American society.
That involves an intense philosophical debate over the basic idea that the powers of government should be separated among branches to assure the people’s liberty – an idea that America’s founders learned from John Locke, the 17th Century English legal philosopher.
Will the revival of that controversy guide the outcome of the “pandemic cases”? That is what’s ultimately at stake, beginning tomorrow.
The Court is expected to rule quite quickly, since the OSHA workplace rules are due to start taking effect soon and the hospital vaccinations policy is currently on hold in half of the states.
Friday’s hearings are scheduled to begin at 10 a.m. The “live” audio (no video) will be broadcast, available at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span Now App.
Next Monday, the Court will resume its regular schedule, with a hearing on a state’s power to recover Medicaid payments it made to cover medical expenses for a private individual. That case will be discussed in this space on Sunday.