The Court divided the two policies in question. It found that the first policy, introduced by the Occupational Safety and Health Association (OSHA), which requires large companies to ensure that their employees are vaccinated or tested weekly, could not enter into force. And it found that the second policy, based on guidelines from the Secretary of the Department of Health and Human Services (HHS) and requiring staff at health facilities participating in the federal Medicare and Medicaid programs to be vaccinated, could enter into power.
Despite the various outcomes, these court rulings revealed a significant divide among the judges as to who should decide such issues, which does not bode well for the people – including the court’s liberal wing with three judges – who are in favor of leaving important decisions, such as vaccine requirements, to the experts of federal agencies.
Defenders of significant agency power are now easily subdued by those on the court who seem to believe that either Congress or states should take precedence over the regulation of territories specifically allocated to federal agencies for this purpose. This is alarming when you consider how many aspects of our lives – from our financial system to the environment, from communication to transportation, to the food we eat – are shaped by the regulatory work of federal agencies.
So what does this mean for the future of federal regulatory authority?
On the one hand, the three most conservative judges – Thomas, Alito and Gorsuch – had to write a simultaneous statement in the OSHA case to argue that if the court had found that OSHA had the statutory power to impose its policy, it probably would would have constituted an unconstitutional allocation of legislative power because of its imposition of state sovereignty. It is clear that the other three Conservative judges did not take part in such an obvious and unnecessary demonstration of their view that the wishes of the states should trump the powers of the Agency in this situation.
On the other hand, although a majority of judges were not willing to go that far in this OSHA case, there were six votes to take the decision-making power out of the agency’s hands: The majority opinion said Congress had authority, OSHA dissidents said, and those who agreed suggested that it be left to the states.
This is a debate that we have not yet seen the last of, and if I read (and count) tea leaves and justice correctly, the formulation of federal government rules has a dangerous way ahead.