The Supreme Court s Ruling On Vaccine Mandates Is Frighteningly Weak
Congress s failure to expressly authorize the CMS to mandate vaccines at Medicare- and Medicaid-funded facilities represented but one of the problems with the rule. Justice Alito, in a separate dissent joined by Justices Thomas, Gorsuch, and Barrett, added to the analysis a discussion of CMS s failure to comply with the notice-and-comment mandates Congress established before agencies could promulgate regulations. That violation, Alito explained, doomed the vaccination mandate because there was no good cause to sidestep those requirements.
In finding the CMS violated the notice-and-comment rule, Alito stressed, as did Gorsuch in his National Federation concurrence that, under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people.
Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns, Justice Alito continued, noting, today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators. Under these circumstances, then, the notice-and-comment period proves indispensable, Alito explained unless, that is, you are the Biden administration.
The Biden v. Missouri dissents, however, did not go far enough. The same separation of powers problems plaguing the OSHA regulation apply equally in the context of the CMS rule. Yet the dissenting justices gave short shrift to those concerns.
The question is, why? Also, why did Gorsuch s concurrence in the OSHA case only garner three votes, including his own? Was it the procedural posture of the case: A hearing not on the merits but on the propriety of a stay? Was it the time crunch? Was it a desire for more detail and nuance?
Or was it because reaching a truly conservative five-justice majority is as elusive as an end to this pandemic.