FILE - DeMarcus Hicks, a recent graduate of nursing school who is working as a contractor with the Federal Emergency Management Agency, gives a person a Pfizer COVID-19 vaccine booster shot, Dec. 20, 2021, on the first day of a COVID-19 vaccination clinic in Federal Way, Wash. The Supreme Court will hear oral arguments Jan. 7, 2022, on challenges to whether the Biden administration can order millions of workers at private companies and health care employees be vaccinated for COVID-19. Until the court rules, millions of workers face a patchwork of requirements depending on where they live. (AP Photo/Ted S. Warren, File)

Two sets of cases the Supreme Court is scheduled to hear this Friday, January 7, promise to be of exceptional importance on multiple fronts. Most immediately, they will signal the fate of mandatory public health measures imposed by the federal government to curb the ongoing coronavirus pandemic. They may also provide indications of how intent the Court’s right-wing majority is to curb the regulatory power of the executive branch in general.

Two cases, National Federation of Independent Businesses v. Department of Labor and Ohio v. Department of Labor, seek a stay of the Emergency Temporary Standard issued by the Occupational Safety and Health Administration, or OSHA. With some exceptions, the ETS requires employers of 100 or more persons to adopt either a mandatory COVID vaccination policy or a policy allowing any employee “to choose either to be fully vaccinated against COVID–19 or provide proof of regular testing for COVID–19 … and wear a face covering” when in a work vehicle with other persons or working indoors.

Two others, Becerra v. Louisiana and Biden v. Missouri, are proceedings brought by the Biden administration to stay preliminary injunctions issued by the Fifth and Eighth Circuits, respectively. Those appellate courts had upheld lower court orders barring implementation of a vaccination mandate issued as an “interim final rule” by the Centers for Medicare and Medicaid Services. In essence, the CMS rule mandates COVID vaccination for staff at Medicare- and Medicaid-certified providers and suppliers. The rule acknowledges that federal law also requires such employers to provide “appropriate accommodations” for “employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.”

A third COVID-related federal mandate—vaccination and masking requirements issued by the Safer Federal Workforce Task Force, which apply to the employees of federal contractors—is not directly involved. Nonetheless, the Court’s handling of the OSHA and CMS rules may well signal its stance on the contractor mandate, as well. That mandate is currently the subject of multiple injunctions in the lower courts, which are being appealed.

The very fact that the Supreme Court both invited briefing and scheduled oral argument on the procedural questions now before it might reflect some collective sensitivity to widespread criticism of its use of the so-called shadow docket. Shadow docket proceedings involve procedural “case management” orders, such as applications to stay or to lift a stay, on some existing matter that has not yet reached the Court on its underlying substantive merits. Technically, the applications regarding the OSHA and CMS rules fall in this category.

Yet, as explained by the law professor Stephen Vladeck, rulings on the shadow docket typically receive “no more than one round of briefing (and sometimes less); are usually accompanied by no reasoning (let alone a majority opinion); invariably provide no identification of how (or how many of) the Justices voted; and can be handed down at all times of day—or, in some exceptional cases, in the middle of the night.” Such truncated procedures may be relatively unobjectionable with regard to the many cases involving little public controversy. But the Court, to an unprecedented extent, has been using the shadow docket in recent years for the resolution of some deeply controversial cases, including litigation over COVID restrictions. When the Court’s five most conservative justices followed shadow docket procedures last September in declining to enjoin Texas’s latest antiabortion law, Justice Elena Kagan chastised the majority for a decision “emblematic of too much of this Court’s shadow docket decision making—which every day becomes more unreasoned, inconsistent, and impossible to defend.” Given several of the justices’ very public dissatisfaction (here, here, and here) with accusations of political motivation in their rulings, the acute partisan polarization around issues of COVID mitigation may have counseled their proceeding in a more deliberative and transparent manner than they might otherwise have done.

The mandate-related cases don’t turn directly on constitutional issues; the ultimate questions involved in all three are matters of statutory interpretation and application: Has the issuing authority reasonably interpreted the relevant statutes as permitting the public health measures that the authority has issued? If so, do the facts in the record support the reasonableness of its approach? For each mandate, a variety of plaintiffs argue that the answer is no, either because the underlying statute doesn’t allow the order or because the agency has misread the facts. Each set of plaintiffs is ultimately seeking a permanent injunction—a kind of court order—that would prevent the rule’s implementation. At this stage of the litigation, however, the lower courts have gone no further than issuing (or denying) what are called preliminary injunctions. Preliminary injunctions are court orders holding the status quo until a full trial can be held. Whether any party is entitled to a preliminary injunction depends on which party—the government or its challengers—is likely ultimately to succeed on the merits, whether the party seeking the preliminary injunction will be irreparably injured without it, issuance of the order would substantially injure the other parties interested in the proceeding, and the order would otherwise be consistent with the public interest.

As it happens, each federal mandate rests on a different statute, so each legal challenge presents its own distinct dispute over legislative interpretation. As for OSHA’s standard, the Occupational Safety and Health Act seems quite clearly to authorize the kind of order OSHA has issued. That statute requires OSHA to issue an emergency standard if “necessary” to protect workers from a “grave danger” presented by “exposure to substances or agents determined to be toxic or physically harmful or from new hazards.”

A variety of plaintiffs challenged the OSHA standard in every court of appeals, however, and the disparate challenges were ultimately consolidated in the Sixth Circuit. By a 2–1 vote, a Sixth Circuit panel upheld the ETS, even though a Fifth Circuit panel had temporarily stayed its enforcement. (To those inclined to suspect that political partisanship inevitably affects judges’ legal conclusions, it might be of interest that the two affirmative votes in the Sixth Circuit were from judges appointed, respectively, by Barack Obama and George W. Bush. On the other hand, the unanimous Fifth Circuit panel included two Trump appointees—as was the Sixth Circuit dissenter—and Judge Edith Jones, who for many years in her long judicial career might have been thought the farthest-right member of a notoriously conservative court.)

Opponents of the ETS argue variously that the coronavirus is not an “agent,” the danger posed to the workers covered by the ETS is insufficiently “grave,” or that the measures ordered are not “necessary.” Sixth Circuit Chief Judge Jeffrey Sutton, dissenting from his court’s unwillingness to reconsider the panel decision en banc, also argues that Congress did not authorize the secretary of labor to impose a nationwide vaccinate-or-test mandate with sufficient clarity to infer agency power to enter so ambitiously into a matter of public health policy usually handled at the state or local level.

Each of these arguments, however, runs into the fact that the Occupational Safety and Health Act is explicit in authorizing standards to reduce dangers posed by “new hazards.” Moreover, the act provides that “nothing in this or any other provision of this chapter shall be deemed to authorize or require medical examination, immunization, or treatment, for those who object thereto on religious grounds, except where such is necessary for the protection of the health or safety of others.” It is difficult to see why Congress would worry that the act might need to specify a religious exemption from “immunization,” unless mandatory immunization was a tool within OSHA’s authorized toolbox.

The second set of cases involves a vaccine mandate for health care staff at Medicare- and Medicaid-funded hospitals, which constitute the vast majority. This order rests on Sections 1102 and 1871 of the Social Security Act. Section 1102 grants authority to the secretary of health and human services to make and publish such rules and regulations “as may be necessary to the efficient administration of the functions with which [the secretary] is charged.” Section 1871 allows the secretary to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs” within the secretary’s purview. With regard to the COVID mandate, the secretary’s authority is implemented through the Centers for Medicare and Medicaid Services.

Because the HHS secretary has legal responsibilities regarding 15 distinct categories of Medicare-certified providers and suppliers, the CMS published a table that shows how powers generally described in Sections 1102 and 1871 tie into the specific provisions for each of the 15 categories. In terms reminiscent of Judge Sutton’s objection to the OSHA standard, the Fifth Circuit and a federal district court in Missouri nonetheless deemed the general grants of authority to the HHS secretary insufficiently clear to support a policy as consequential as the CMS rule. By way of contrast, a three-judge panel of the Eleventh Circuit determined that the CMS rule fell within the secretary’s “express statutory authority to require facilities voluntarily participating in the Medicare or Medicaid programs to meet health and safety standards to protect patients.”

Viewed through the lens of conventional administrative law from the New Deal through the advent of the Roberts Court, there seems little doubt that a reviewing court would agree with the government. Whether or not the rules represent the best public health policy, the fit between the relevant statutory texts and the departments’ respective exercises of regulatory authority seems reasonable on its face. The legal authority for each mandate is carefully explained in the lengthy preambles each agency published with its rule.

But, as if the life-and-death implications of COVID policy making were not enough to make these high-stakes cases, there is a constitutional backdrop to both. They have arisen at a moment of intense right-wing legal activism against the policy-making authority of the executive branch in general. Most of the current justices have already expressed unease at the current state of the “non-delegation doctrine”—the rule that Congress may not abdicate its legislative power by granting such power to the federal executive. At least since the 1940s, the Court has implemented that doctrine through the “intelligible principle” rule. Under that rule, a statutory grant of administrative authority is permissible if it contains, implicitly or explicitly, some limiting principle that constrains whatever policy-making discretion Congress has vested in the executive branch. As the Court said in a 1944 case, the principle need only be sufficiently intelligible that a court reviewing an administrative action can tell whether it falls within or beyond the bounds of Congress’s delegation. So construed, the test has allowed Congress to convey broad and impactful policy-making discretion to administrative agencies that frequently have enormous social and economic implications. Nineteen thirty-five is the only year in the Court’s history in which any statute has failed any version of the non-delegation doctrine.

Conservative anxiety about so forgiving a standard purports to be rooted in a too-wooden view of the separation of powers—an item of conservative doctrine both ahistorical and contrary to the public interest. Under the right-wing understanding of “legislative” power, virtually any impactful policy-making discretion that an administrative agency deploys is constitutionally suspect. That, they claim, is because making policy choices that result in constraints on private behavior is an exercise of legislative power, entrusted only to Congress. Despite some justices’ agitation for change, however, the Roberts Court has yet to cut back the intelligible principle rule—perhaps because there is no consensus within the conservative bloc on a narrower one.

Yet much of the dismantling of administrative authority that could be accomplished by tightening up on the intelligible principle rule could also be achieved by ramping up what Cass Sunstein has called the “strong version” of the “major questions” doctrine. Under the weak version, it is courts, not agencies, that should interpret ambiguous statutory provisions in “extraordinary cases.” For example, in a 2015 decision upholding the system of subsidies implemented under the Affordable Care Act, Chief Justice Roberts wrote that he did so without deferring to the interpretation of that act by the Department of Health and Human Services. On a “question of deep ‘economic and political significance’ that is central to a statutory scheme,” the Court was bound, he asserted, to interpret the statute independently. The agency interpretation could still prevail under this weak version of the major questions doctrine, and it did. It won, however, only because the Court, reviewing the statute on its own, reached the same conclusion as the agency did.

The strong version of the doctrine, however, deprives an agency of more than deference to its legal interpretation. It holds that an ambiguous statute can never be the basis for a novel expansion of agency authority to a degree a reviewing court regards as “transformative.” It is rooted in a 2014 decision, Utility Air Regulatory Group v. EPA, in which the Court held certain provisions of the Clean Air Act insufficiently clear to authorize certain EPA regulations involving greenhouse gases. The Court held that the EPA’s interpretation of the Clean Air Act was “unreasonable because it would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization.” The challengers to OSHA’s emergency standard and the CMS vaccine mandate argue that those rules would also cause an “enormous and transformative expansion” in the agencies’ power, and thus the statutes at issue are too general to justify regulation of such far-reaching scope.

Both versions of the major questions doctrine are susceptible to serious criticism; indeed, both are cut from whole cloth. Either version portends a dangerous shift of policy-making authority to our unelected judiciary. The strong version, however, is potentially a tool of enormous power in what Gillian Metzger has identified as a multipronged right-wing legal attack on the national “administrative state.” In our current historical moment, a formalist insistence that only Congress may impose “transformative” regulations on the private sector is to all but ensure that no such regulatory programs occur. Our actual Congress can barely agree that the sun rises in the East, much less that a vaccine-or-mask mandate is or is not in the public interest.

Moreover, there is a reason why Congress delegates broad authority to administrative agencies in the first place: It enables administrative agencies to do a crucial part of their job by responding nimbly to new or unforeseen public welfare emergencies. A Congress that could have foreseen the need for vaccine or mask mandates to control a previously unknown coronavirus would have had to have been clairvoyant. And a disease as contagious and as devastating to our health care system as COVID is a paradigm example of a challenge to which a patchwork of state and local responses may not be optimal. Thus the COVID mandate cases may not appear to a majority of justices as the best vehicle with which to incapacitate federal regulatory agencies.

Whatever happens regarding the OSHA and CMS policies, however, the outlook for the separate rules applied to federal contractors will remain highly uncertain. In empowering the Safer Federal Workforce Task Force he created to regulate federal contractors, President Biden relied on the Federal Property and Administrative Services Act of 1949. The FPASA authorizes the president to “prescribe policies and directives that the President considers necessary” to “provide the Federal Government with an economical and efficient system” for procuring goods and services. Presidents have used the act to accomplish a wide range of purposes not always primarily motivated by concerns of economy and efficiency. Most notable has been its use to impose affirmative action and anti-discrimination requirements on private firms doing business with the federal government. As a general matter, it is easy to see how preserving the health of the federal contracting workforce would be deemed necessary to promote economical and efficient federal procurement.

The administration’s defense of its contractor mandate will thus continue to draw on both the broad wording of the FPASA and the established doctrine that the federal government has broad power to impose conditions on federal contracts. Yet it is not hard to imagine how a skeptical Supreme Court might choose to attack the contractor mandate. If the Court finds the “major question doctrine” fatal to the OSHA and CMS standards, then a mandate based on the FPASA would appear even more tenuous. After all, both the Occupational Safety and Health Act and the Medicare provisions of the Social Security Act are, at the very least, incontestably health related. The FPASA is not. On the other hand, even if the first two standards pass review, an eventual challenge to the contractor mandate might still succeed. Why? Opponents will draw on the clear health focus of the statutes supporting the first two standards, and then suggest that the lack of health language in the FPASA shows that Congress did not intend to grant the president health authority over federal contractors.

Since the advent of COVID-19, the nation has lived with searing uncertainty about the nature of the disease, the measures needed to prevent its spread, the effectiveness and safety of vaccines, and the proper treatments for those who contract it. As the Court gathers on Friday, the Omicron variant has scrambled prospects for the future even more. It is fortunate that the Court has realized that, amid the gathering gloom, these cases should not be decided in the shadows. One hopes the Court will not think itself more capable of recognizing—or entitled to recognize—sound public health policy than the administrative agencies Congress has charged with that task.

Peter M. Shane

Follow Peter M. on Twitter @petermshane. Peter M. Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at Ohio State University. His publications include Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) and Democracy’s Chief Executive: What the Constitutional Presidency Means Today, forthcoming from the University of California Press in 2022.