By Jerry Hartman, Foundation President and Board Chair
1. National Federation of Independent Business v. Department of Labor (January 13, 2022)
Should courts or an administrative agency determine governmental policy in reviewing a Congressional enactment?
The answer to this question as to essentially who should govern has a profound impact on the direction of our democracy. A little background first before exploring the Supreme Court’s decision regarding Congress’ power to issue a sweeping vaccination mandate.
In 1984, the Supreme Court ruled in Chevron v. Natural Resources Defense Council that federal administrative agencies should interpret statutory language as long as their interpretations are not unreasonable. Often called the Chevron doctrine, it enabled the executive branch, acting through its administrative agencies, to set federal policy. In a decision by Justice Stevens, the Court held that if the intent of Congress is clear, a reviewing court and the agency must follow that language, but, if not, the court should not impose its own construction on the statute. Rather, the question is whether the agency’s answer is based on a permissible construction of the statute. Justice Steven’s view was that agencies have the necessary technical expertise compared to judges, and while agencies are not directly accountable to the people, the President who appoints agency personnel is and the executive branch should therefore make policy determinations.
Over the succeeding years, conservatives applauded determinations being made by an administrative agency and not by unelected judges. Progressives saw the Chevron doctrine as counter to the rule of law. But, in the last decade this has all flipped, with opposite views now taken by conservatives and progressives. Many conservatives believe now that agency decisions on major issues are unconstitutional. Of course, this debate must be seen in the context of the Administrative Procedure Act, passed in 1946, with its notice and public comment provisions on proposed rule-making that was a response then to the debate of who ultimately decides government policy.
Turning to the recent unsigned decision in National Federation of Independent Business, the Court’s conservative majority held, not even citing the Chevron decision, that OSHA’s enactment of a temporary vaccine mandate for virtually all American employers was unconstitutional. Two important points should be noted: there was a masking and testing exception to the mandate and no notice, public comment period, or public hearing had occurred. Rather, OSHA had acted pursuant to its statutory authority to do so in the face of a national emergency.
Although Congress had indisputably given OSHA the power to regulate occupational dangers, the Court found that it has not given the agency the power to regulate public health more broadly. It said that OSHA, in its half century of existence acting without historical precedent, had never before adopted a broad public health regulation of this kind unconnected to the workplace. This demonstrates, the majority said, that the vaccine mandate extends beyond the agency’s legitimate reach.
The majority further said that Congress had not spoken clearly and assigned such power to OSHA with respect to a decision of vast economic and political significance –a so-called “major decision”—that resulted from the oblique, unlikely delegation of legislative power supplanting government by the people. It found that historically such matters have been regulated at the state level by authorities who enjoy broader and more general governmental powers.
The liberal three justices in their dissent, written by Justice Breyer, said that the case presents a single, simple question: “Who decides how much protection, and of what kind, American workers need from COVID–19? An agency, with expertise in workplace health and safety, acting as Congress and the President authorized? Or, a court, lacking any knowledge of how to safeguard workplaces and insulated from responsibility for any damage it causes?”
The majority decision, the dissent said, displaces the judgments of the government officials responsible for responding to workplace health emergencies. It pointed to the OSHA statute which requires OSHA to issue “an emergency temporary standard to take immediate effect upon publication in the Federal Register if [the agency] determines that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and that such emergency standard is necessary to protect employees from such danger.”
Such expansive language and the extensive evidence in the record, the dissent found, precludes limiting the agency’s discretion and endangering the lives and safety of the country’s workers. It further noted that the OSHA Standard does not impose a vaccine mandate but rather allows employers to require masking and testing instead and has the virtue of political accountability because OSHA is responsible to the President who, in turn, is accountable to the American public.
2. Biden v. Missouri (January 13, 2022)
Was a limited vaccine mandate constitutionally permissible?
A decision reaching a different result from the National Federation of Business case addressed the same question of who governs and was actually favorable in terms of social justice concerns. We discuss it for purposes of completeness and contrast. In Biden v. Missouri, decided the same day, the majority, composed of the three liberal Justices joined by Chief Justice Roberts and Justice Kavanaugh, found that a more limited health care mandate issued by the Secretary of Health and Human Services that requires health care workers at facilities receiving federal money to be vaccinated was constitutionally permissible.
The majority pointed to the fact that the agency requires by detailed statutory provisions that healthcare providers who participate in Medicare and Medicaid protect their patients’ health and safety. An interim final rule it said amended existing conditions of participation to require that existing staff are vaccinated against COVID-19 based upon the ongoing threat to the health and safety of patients. The interim final rule was issued without notice and comment based upon the Secretary’s good cause finding that further delay would endanger patient health and safety.
The majority found that the interim rule fits neatly within the statutory language to avoid harm to covered patients. Not agreeing with the dissent that the broad statutory language authorizes the Secretary to do no more than impose bureaucratic rules regarding the administration of Medicaid and Medicare, the majority held that the longstanding practices of the agency were consistent with its statutory authority to set a host of conditions to safeguard patient safety and noted that vaccinations are a common requirement of the provision of health care. The majority concluded that the unprecedented circumstances surrounding COVID-19 provided no grounds for limiting the exercises of authority that the agency was longed recognized to have as such actions came within the power Congress has conferred.
The dissent, written by Justice Thomas, stated that the statutory provisions governing the management of Medicare and Medicaid to promulgate rules do not support the imposition of a vaccine mandate because the connection is at most tangential. Moreover, the dissent states that the “agglomeration” and “hodgepodge” of statutory provisions cited by the majority do not authorize such a rule. Congress, it stated, could have authorized the grant of such “sweeping” power, but had not done so and would have been expected to speak clearly when authorizing an agency to exercise such powers of vast economic and political significance.
3. West Virginia v. Environmental Protection Agency (June 30, 2022)
How should a Court decide whether Congress delegated to an administrative agency the power to determine governmental action?
This case involving an environmental regulation examines oversight of the country’s electrical power supply. In 2015, the EPA promulgated the Clean Power Plan regulatory rule addressing carbon dioxide emissions from coal and natural gas plants citing to the Clean Air Act to determine the best system of emission reduction. After seven years of procedural jockeying, spanning the past three administrations, the Plan came before the Supreme Court for review.
The conservative majority in this climate regulation case changed the longstanding rule for assessing an agency’s statutory authority. It found that the EPA erred thereby scuttling the EPA’s ability to limit carbon emissions from power plants. Justice Kagan, in her dissent for the three liberal justices, stated that the majority rule, thwarting what Congress had enacted, occurred because of the majority’s anti-administrative stance. She said that the majority had appointed itself, instead of Congress or the administrative agency, to be the decision-maker on climate change.
The majority changed the rule, as explained by Justice Gorsuch in his concurrence, from reviewing the statute’s text to requiring a clear statement of the rule from Congress (the so-called “major questions doctrine”).
The conservative majority found that the EPA by applying a rarely used statute did not have the clear Congressional authority, under the so-called “major questions doctrine,” for the authority it claims for forcing a shift throughout the power grid from one type of energy source to another. It pointed to the fact that the EPA cited no specific statutory authority allowing it to transform the Nation’s electrical power supply and that there was a “mis-match” between the EPA’s expertise over environmental matters and its claim that “Congress implicitly tasked it with balancing the many vital considerations of national policy implicated in deciding how Americans will get their energy.” It found that the agency did so without having the required technical and policy expertise needed.
The dissent stated that Congress’ delegation to the EPA was of the kind going back to the Nation’s founding, citing numerous examples. It was permissible, said the dissent, because Members of Congress (1) don’t know enough to regulate sensibly on an issue that lies within an agency’s expertise and (2) can’t keep regulatory schemes working across time by not being able to anticipate changed circumstances. Justice Kagan stated that for a court to decide whether an agency exceeded beyond what Congress wanted, the reviewing court must assess the “nature of the regulation, the nature of the agency, and the relationship of the two to each other.” Harking back to the Chevron doctrine, without citing it, Justice Kagan cites to an earlier decision by Justice Scalia where he stated that the Court has almost never felt qualified to second-guess Congressional delegation that should be reviewed according to common sense and the inherent necessities of governmental coordination. This Scalia reference underscores the conservative flipflop now taken by the majority in this case compared to its views in years past.
4. Kennedy v. Bremerton School District (June 27, 2022)
Does a high school football coach lose his constitutional rights under the First Amendment’s Free Speech and Free Exercise Clauses when he is fired for kneeling midfield after a game to offer a personal prayer?
The conservative majority found that the First Amendment’s Free Exercise Clause protected an individual engaging in a personal religious observance. It held that the school district’s policy was not neutral as other employees engaged in personal secular conduct. Applying a strict scrutiny test, the majority found that the school district’s decision was not justified by a compelling state interest and was not narrowly tailored in pursuit of that interest.
The Court also stated that the Establishment Clause must be understood by reference to “historical practices and understandings” that demonstrate toleration of diverse expressive activities which, in this case, did not constitute coercing students to pray.
The majority further found a violation of the coach’s free speech right because the prayers were personal and did not involve speech attributable to the school district. It held that the school board’s interests, applying the strict scrutiny test, did not serve a compelling interest and were narrowly tailored to that end.
Justice Sotomayor wrote a vigorous dissent stating that the Constitution does not authorize, let alone require, public schools to embrace the coach’s conduct and that the majority, in so doing, misconstrues the facts. She pointed to the coach inviting others to join him and leading student athletes in prayer at the same location on the field which caused disruptions in school events. Justice Sotomayor further referenced the District Court opinion that found that players had reported feeling compelled to join the coach in prayer to stay connected to the team and ensure playing time.
The majority opinion, her dissent stated, overruled prior precedent concerning government endorsement of religion and replaced that standard with a “history and tradition” test that mistakenly fails to account for the interplay between the First Amendment clauses governing freedom of religion and speech. With respect to religion, Justice Sotomayor stated that the proper response to examining the interests protected by the Exercise and Establishment Clauses is to analyze whether the action in question establishes or interferes with religious beliefs and practices or has the effect of doing so. She said that the test applied by the majority which elevates history and tradition over purpose and precedent should not be used.
The majority’s rule offers, she states, no guidance to school administrators and invites courts to engage in amateur efforts at history. Justice Sotomayor concluded by noting that the majority opinion elevates an individual’s interest in personal religious exercise over society’s interest in protecting the separation between church and state thereby eroding the protections for religious liberty for all.
5. Carson v. Makin (June 21, 2022)
May Maine exclude religious schools that provide religious training and ideals to their students from a state tuition assistance program that funds school districts not operating a secondary school?
Under the Maine program pertaining to school districts that do not operate a secondary school, parents designate the secondary school they would like their child to attend. The school district then transmits funds to that school. The Court addressed whether Maine’s exclusion of two religious schools violated the Establishment Clause of the First Amendment.
The State’s exclusion was not based on the religious character of the schools, but the use of State funds by the schools to teach particular religious precepts. The dissents from Justices Breyer and Sotomayor noted that the schools were not neutral as a public school would be but could deny enrollment to students based on gender identity, sexual orientation, and religion and required teachers to be Born Again Christians. Otherwise, the dissent said, a school district, without the exclusion, would be promoting religion and increasing the risk of religiously based social conflict because some citizens of Maine did not support such funding.
The conservative majority did not find a violation of the Establishment Clause. They held that Maine’s decision to continue excluding religious schools from its tuition assistance program promoted stricter separation of church and state than the Federal Constitution requires. It found that a State’s anti-establishment interest did not justify enactments that generally exclude some members of the community because of the anticipated religious use of the benefits from an otherwise generally available public benefit. In finding a law that operates in that manner violated the constitutional test of strict scrutiny, the majority focused on the sole basis for the disqualification which was that the schools funded were religious. The dissent pointed to the religious use these schools put such funds.
6. New York State Rifle & Pistol Association v. Bruen (June 23, 2022)
Can New York, consistent with the Second and Fourteenth Amendments to the Constitution, prohibit by statute the public carry of a concealed firearm outside the home by requiring a license showing proper cause to do so that is satisfied by demonstrating a special need for self-protection?
Most interestingly, the majority and the dissent differ on the application of history as a precedent for analyzing the law applicable to this case. In some sense, the question to be answered comes down to whether the historical tradition of firearm regulation or the current state of affairs should determine the outcome.
Justice Barrett, in her concurrence, notes that the Court’s decision does not conclusively determine the manner and circumstances in which current practices bear on the original meaning of the Constitution, her so-called permissible history. Be as that may, history wins in this case that restricts a governmental right to limit public carry. Justice Thomas writing for the majority recognized that the Second Amendment right to bear arms was not unlimited and did not permit the right to carry any weapon whatsoever and for whatever purpose but protects weapons that are in common use at the time.
The Foundation’s View
Taken as a whole, these five decisions demonstrate the loss of individual and societal rights resulting from judicially expressed views held by six conservative justices, three of whom were newly appointed by a President elected by a minority of voters and despised by so many for his outrageous actions.
The Barbara McDowell Foundation will support and fund in the future social justice litigation that challenges the outcomes of these five destructive decisions affecting the rights and freedoms of all of us. While not easy, our task is guided by the principle that our government was founded upon the belief of equality for all, not privilege for the few.