Understanding the limited reach of the Supreme Court decisions on mandates

The two recent United States Supreme Court decisions — NFIB v. OSHA, No. 21A244, and Biden v. Missouri, No. 21A240 — can be confusing to those who don't understand exactly what the court decided.  The first stopped OSHA from issuing a regulation mandating vaccinations or expensive weekly tests for employees in private companies with 100 employees or more.  The second, sadly, did not stop Biden's mandate that, in the midst of a shortage of health care workers, 10 million health care workers will be fired if they refuse a vaccine that does nothing to prevent contagion.  Neither decision limited government power in the way people hope.

If you'd like to read the decisions yourself, NFIB v. OSHA can be viewed here and Biden v. Missouri can be viewed here.

Most people believe that the following three legal issues were presented to the court in these two cases:

1. Whether the federal government has the authority to mandate vaccinations.

2. Whether Congress has the power to delegate to federal agencies the authority to mandate vaccinations.

3. Whether Congress did in fact delegate to the two federal agencies in question the authority to mandate vaccinations.

Image: Supreme Court justices (edited in befunky).  Public domain.

It will surprise many people to learn that the Court did not address either the first or second issue in either case.  That is, the Supreme Court has not spoken about the federal government's authority to mandate vaccinations or Congress's power, if it has such an authority, to delegate the power to federal agencies.  Instead, in both cases, the Court limited itself to addressing the third issue only.  In NFIB v. OSHA, the court's answer is "no," and in Biden v. Missouri, the court's answer is "yes."

Florida governor Ron DeSantis, who has chosen a completely different path for Florida, clearly wanted the court to answer the first issue in the negative so he and other states' governors could have a free hand to do what's best for their citizens.  But both the majority and dissent in both decisions ignored the first two issues.  In effect, it was tacitly assumed by all nine that the answers to Issues No. 1 and No. 2 are that the government has the power to order Americans to get vaccinated and can farm that power out to federal agencies.

The tacit "yes" to Issue No. 1 raises an important question: is there any coercive power the federal government does not have?

The tacit "yes" to Issue No. 2 raises an equally important question: is there any legislative power granted to Congress by Article I of the federal Constitution that Congress cannot delegate to an executive agency?

Taken together, these two questions become, is there any coercive power that cannot be legally assigned to the president?

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