The Supreme Court can’t get its story straight on Covid-19 vaccines - Vox

Textualists sometimes claim to be bound by the plain meaning of text and spurn context such as Congressional intent.  Except, of course, when they don't ...by turning, e.g. to "original public meaning".  That is a constructive form of textualist interpretation embraced in the influential work by Antonin Scalia A Matter of Interpretation. 

But one way or another we all engage in such construction, reasoning by incomplete analogy.  Thus due process, freedom of expression, anti-establishment, freedom from unreasonable search and seizure, privileges and immunities yield the line from Griswold v. Connecticut [personal, private right to use contraceptives], to Roe v. Wade [personal doctor-woman decision on terminating pregnancy], Lawrence v. Texas [privacy of consensual sexual relations], Obergefell v. Hodges [States must respect personal choice to marry another of the same gender].

Ian Millhiser here identifies the "major questions doctrine" enunciated with renewed vigor by the conservatives on the Supreme Court.  Coupled with the "non-delegation doctrine" Neil Gorsuch asserts in the Medicare workers vaccine case that the two combine to make Congress the decision-maker.   We are accustomed to assertions that bureaucracies are self-aggrandizing, and the Imperial Presidency is a common trope but as Fordham law professor Ethan Leib points out there is also the drive to judicial aggrandizement. 

Ian Millhiser here discusses the judicially created major questions doctrine which the six conservatives deployed in Alabama Realtors v. Department of Health and Human Services used to strike down the eviction moratorium despite the plain language of the Public Health Service Act 42 USC 264a which provides:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment​ are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.

 But the meaning of "necessary" was deemed not plain enough, so the Court 6-3 pushed the measure back to the divided Congress and widely divergent powers of the states.

- GWC

The Supreme Court can’t get its story straight on Covid-19 vaccines - Vox

By Ian Millhiser

On Thursday [January 13, 2022], the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.

The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.

There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.

But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.

The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.

But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!

What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.

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