A case working its way through the courts may mark the end of employers’ ability to mandate that their employees must work more than 40 hours a week, regardless of what they do.
Martin Kozlowski’s illustration
President Biden’s chief of staff, Ron Klain, retweeted an MSNBC anchor’s comment that using workplace safety regulations to compel vaccines was “the ultimate work-around” hours after President Biden’s Sept. 9 address announcing a series of vaccine requirements for private-sector workers. Congress has never passed a bill mandating vaccination for American people, presuming it even has the constitutional right to do so, which is unlikely. The Supreme Court will hear arguments on two of the mandates on Friday, and they are likely to face the same fate as previous recent efforts to bypass Congress that have been rejected by the courts.
Congress has the capacity to enact laws, and the president is responsible for putting them into effect. Many in Washington mock this governance style, referring to it as “high school civics class.” It’s sluggish and inefficient, seldom adopts legislation that doesn’t have substantial public support, and it compels policymakers to compromise, moderate, and fit policies to the needs of a huge and diverse country. It’s understandable that the urge to avoid it by executive order exists.
It seems that all it takes is some deft legal maneuvering. The United States Code is filled with vaguely written statutes, which are made even more so by court deference to agencies’ interpretations. Rather of following Congress’s plan, a president may devise his own strategy and then study the law books for wording that can be twisted to make it legal. Professor Elena Kagan dubbed the method “presidential administration” in a Harvard Law Review paper from 2001. When confronted with legislative opposition to his plan, President Obama said, “I’ve got a pen to take executive measures where Congress won’t.”
But it isn’t that simple. Mr. Obama’s hallmark climate initiative, the Clean Power Plan, established tight and unrealistic emission limits for fossil-fuel power plants in order to push them out of business and restructure the energy sector. It was based on a daring interpretation of an obscure Clean Air Act clause. It was barred from taking effect by the Supreme Court in 2016, and it was eventually abolished by the Trump administration. (Oklahoma was our client in the case.)
Mr. Obama’s immigration-reform initiatives, which were also enacted against legislative opposition, met the same destiny. Following judicial defeats, Deferred Action for Childhood Arrivals—which permits illegal immigrants brought to the United States as youngsters to work and escape deportation—remains in legal limbo over a decade after it was founded. Before it went into effect, its equivalent for parents of U.S. citizens and permanent residents was enjoined.
Mr. Biden has tasted loss before, in a case that foreshadows the mandate battles. After Congress refused to renew the Trump administration’s national eviction ban, the Biden administration took action on its own, relying on a 1944 legislation permitting the CDC to employ explicitly defined disease-prevention measures including fumigation and pest eradication. “We expect Congress to speak plainly when enabling an agency to wield powers of great economic and political consequence,” the justices said, implying that Congress had not meant to vest such “breathtaking” authority on CDC.
To put it another way, imprecise wording in ancient legislation is insufficient to justify a presidential power grab. Despite this, the administration’s support for vaccine requirements has been limited. The Occupational Safety and Health Administration requires all businesses with 100 or more workers to deliver a vaccine or testing obligation, which affects over 85 million people. It is based on a restricted rule that only applies to workplace-specific dangers and has never been used to mandate vaccination. The requirement for Medicare and Medicaid providers (which covers 10.3 million people) is based on broad laws permitting regulations essential to manage those programs—which have never been used to enforce vaccines. There is no indication in any of these acts that Congress authorized any agency to implement broad-based vaccination mandates affecting millions of Americans.
The absence of unambiguous legislative authorisation is the most glaring fault in the requirements, notwithstanding their other flaws. Mr. Obama’s “I’ve got a pen” agenda and its rebirth under Mr. Biden were made possible by excessive court deference to agencies’ legislative interpretations. As a consequence, the whole federal legislative system has been distorted. Rather than legislating, members of Congress are increasingly lobbying the executive branch to enact legislation via regulation. Major policies are enacted by agencies and last for a presidential term before being overturned. And the president would rather blame the courts for legal setbacks than accept he lacks the authority to carry out the wishes of his friends.
The courts bear some responsibility for this state of things, since they have lost sight of the fundamental separation-of-powers principles that should inform problems of legislative authority. A rejection of the vaccine requirements because they were not expressly approved by Congress would be a shot across the bow, signifying the end of the workaround period.
During the Reagan and George H.W. Bush administrations, Mr. Rivkin worked in the Justice Department and the White House Counsel’s Office. Mr. Grossman is a Cato Institute adjunct scholar. In Washington, they both practice appellate and constitutional law.
Vaccine requirements, gun rights, and abortion are all on the Supreme Court’s agenda. Images courtesy of AP/Getty Images Mark Kelly’s composite
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‘The End of the ‘Work-Around’ Era’ appeared in the print version of the January 7, 2022, issue.