Ruth Marcus, deputy editorial page editor and columnist for the Washington Post, is very concerned that the Supreme Court may strike down President Biden’s attempt to create a nationwide vaccine mandate. But she’s too honest not to acknowledge that the order is skating on thin legal ice. She identifies the questions the Court will consider:

Can federal agencies impose mandates using laws that were hardly designed with a global health crisis in mind? Or must regulators wait for that authority to be made clear by Congress, which has proved itself increasingly incapable of governing?

Good questions. She also notes that “these mandates represent aggressive, even unprecedented, uses of federal regulatory authority.” Which is always a good reason for courts to take a close look at the cases and the Constitution. Marcus acknowledges the Court’s

ruling earlier this year that the federal Centers for Disease Control and Prevention exceeded its authority in issuing a moratorium on evictions for those in areas with high covid-19 spread.

“It would be one thing if Congress had specifically authorized the action that the CDC has taken,” the court said in an unsigned opinion. “But that has not happened. Instead, the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination.”

Marcus notes that the Occupational Safety and Health Act “allows OSHA to issue emergency rules when it deems them ‘necessary’ to protect employees from ‘grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.’” And she argues, “It doesn’t seem like much of a textual stretch, if a stretch at all, to consider the coronavirus an ‘agent’ that poses ‘grave danger’ to workers.” But she knows that “OSHA has never before imposed such a broad, nationwide and non-industry-specific requirement.”

Marcus is not happy about a Court that, she says, “is itching to rein in administrative agencies and is disinclined — to put it mildly — to read agencies’ authorities broadly.” People who favor limited government, who know that, as the Court ruled in 1995, “The Constitution creates a Federal Government of enumerated powers,” will have a different view. 

P.S. Marcus has an excellent column on current First Amendment controversies in today’s Post.