The Supreme Court Reclaims Its Legitimacy

By David B. Rivkin, Jr., and Jennifer L. Mascott

25 June 2022 in the Wall Street Journal

The most anxiously awaited Supreme Court decision in decades is also the least surprising. An act of institutional sabotage leaked Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization nearly eight weeks in advance. On Friday a five-justice majority definitively overruled Roe v. Wade (1973) and Planned Parenthood v. Casey (1992), affirming states’ authority to regulate abortion. In so doing, the court reclaimed its legitimate constitutional role and signaled a willingness to re-examine precedents that strayed across the line between law and policy or misconstrued important constitutional provisions.

But the draft opinion’s leak damaged the court, which requires the justices to collaborate in confidence. The leaker’s purpose seems obvious: a last-ditch effort to mobilize public opinion and activist protesters in hope of intimidating the justices into rethinking their position.

This breach was shocking but probably shouldn’t have been surprising. In the past several decades, and particularly since President Trump began appointing justices, the court has faced mounting opposition, including pointed threats against individual justices by members of Congress. Supreme Court nominations, especially by Republican presidents, have become ideological and partisan wars, sometimes featuring ugly uncorroborated allegations of personal misconduct. Sending mobs to threaten justices and their families at home was only the latest escalation.

These attacks on the court are part of a concerted campaign to undermine the legitimacy of American institutions and norms and the Constitution itself. The court’s most vociferous critics either don’t understand its proper role or, more likely, reject it. This was evident in the national debate over the leaked draft of Justice Alito’s opinion, which focused entirely on the policy and political implications of overturning Roe rather than its legal basis.

In fact, Dobbs imposes no policy. It simply states that abortion is not among those individual rights protected by the federal Constitution. The result is that this contentious issue has been returned to the state legislatures, which had primary responsibility for setting abortion policy until the court imposed its own views on the country in 1973.

It was at that time, and not today, that the justices overstepped their boundaries and ensured that the court would become the focus of political contention for half a century. Dobbs belatedly corrects that error by recognizing that the federal judiciary’s constitutional role is merely to decide cases and controversies, based upon the established tenets of law grounded in the Constitution, federal statutes and common law. Policy decisions properly belong to the elected branches of federal and state government.

Congress’s approval ratings are abysmally low, as are President Biden’s, and some critics have claimed the justices should be concerned that the Supreme Court’s ratings are declining too. But the federal judiciary is a countermajoritarian institution. The court does its most important work when it renders decisions that are unpopular but legally correct.

It bears emphasizing that Dobbs’s detractors lob objections that don’t reflect the true nature of the opinion. They claim the justices have shown a disregard for stare decisis, the doctrine of respecting precedent. In fact, the decision relies on the precedent in Washington v. Glucksberg (1997), which concluded that there is no constitutional grounding for any claimed right that is neither enumerated in the Constitution nor deeply rooted in the nation’s history and tradition.

Dobbs also marks a path toward restoring the constitutionally prescribed diffusion of powers among governmental branches, undergirded by a system of checks and balances. This uniquely American structure of government is the primary safeguard of individual liberty.

In the coming years, the court will face a series of momentous opportunities to perform its constitutional responsibilities. It will be called on to continue re-examining Congress’s authority to dictate state policy by attaching strings to funding measures. And in a series of cases over the past 30 years, the justices have issued rulings restoring some of the proper balance between the federal government and the states by reaffirming that there are limits on Congress’s authority to regulate interstate and foreign commerce. Those limits may now be tested depending on whether Congress decides to refederalize abortion by legislation either requiring or limiting its availability.

The court will also face key questions involving the relationship between Congress and the executive branch, such as the permissibility of broad congressional delegations of policy-making power to regulatory agencies and statutory limitations on the president’s constitutional duty to manage federal bureaucracies.

The extent to which executive agencies can adjudicate matters involving significant private-property and liberty interests without close judicial supervision is another question that the court likely will revisit. The justices are repeatedly being asked to resolve questions about whether agencies have overstepped their statutory authority to regulate, particularly in areas involving major policy questions. In the oft-repeated words of Chief Justice John Marshall : “It is emphatically the province and duty of the Judicial Department to say what the law is.” The burgeoning federal bureaucracy too often arrogates this power to itself, often overlooking statutory and constitutional constraints.

The Supreme Court’s legitimacy therefore is of utmost importance. The decision in Dobbs suggests a majority committed to the court’s proper role, which is to decide cases independent of political and popular winds.

Mr. Rivkin practices appellate and constitutional law in Washington. Ms. Mascott is an assistant professor at Antonin Scalia Law School and a former clerk for Judge Brett Kavanaugh and Justice Clarence Thomas.

Source: https://www.wsj.com/articles/supreme-court-reclaims-legitimacy-abortion-roe-v-wade-dobbs-v-jackson-women-health-reproductive-rights-life-originalism-justice-alito-11656084197

How to Avert a 2024 Election Disaster in 2023

By David B. Rivkin, Jr., and Andrew M. Grossman

April 24, 2022, in the Wall Street Journal

Pennsylvania lawmakers in 2019 decided to allow mail-in voting for the first time. They enacted a statute providing that “a completed mail-in ballot must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election.” In 2020 the state Democratic Party went to court, arguing that in light of the Covid pandemic, the deadline “results in an as-applied infringement” of the right to vote.

The Democrat-dominated Pennsylvania Supreme Court—its members are chosen in partisan elections—sided with the party and ordered a deadline extension, even as it acknowledged the statutory language was clear and unambiguous. The U.S. Supreme Court declined to hear an appeal, so the 2020 election was conducted under this and other new, judge-imposed rules.

Usually there’s no reason for the high court to review a state-court decision about state law. But election law is different. The U.S. Constitution mandates that state legislatures make the laws governing federal elections for Congress and the presidency. The Pennsylvania ruling was therefore unconstitutional. But the justices in Washington, perhaps chastened by the enduring political controversy over Bush v. Gore (2000), seem reluctant to take up such cases close to an election. Fortunately, they will soon have an opportunity to address the issue and to avert the possibility of an electoral meltdown in 2024.

Pennsylvania wasn’t alone in 2020. Faced with Republican control of many state legislatures, the Democrats and their allies took advantage of the pandemic to upend that year’s voting process. Longstanding wish-list items like near-universal voting by mail, ballot “harvesting,” drop boxes, extended deadlines, and loosened identification and signature-match requirements came to pass in much of the country, often by state court order.

The pandemic disruption may be behind us, but litigation over election rules continues. One reason is the success of the Democrats’ 2020 efforts, which their current cases treat as setting a new legal baseline. Returning to ordinary pre-pandemic procedures, they claim, amounts to unlawful “voter suppression.”

But there’s another reason for the state-court litigation explosion: redistricting after the 2020 Census. If state judges are willing to second-guess voting laws, why not the maps too? New maps are often litigated, but what’s different this time is the number of cases asking courts to toss out alleged partisan gerrymanders. The U.S. Supreme Court closed the door to such claims under the federal Constitution in Rucho v. Common Cause (2019), reasoning that there was no “clear, manageable, and politically neutral” standard for courts to apply. The same objection applies to suits brought under state law, but Rucho didn’t address that question.

So they proliferated. Many states where Democrats could pick up House seats with a different map have faced lawsuits based on open-ended state constitutional provisions, such as North Carolina’s proclaiming “all elections shall be free.” Several states’ top courts have tossed out legislature-enacted maps; the North Carolina justices even authorized a lower court to hire its own mapmakers. Republicans won state-court decisions against Democratic gerrymanders in Maryland and New York state.

None of this passes constitutional muster. State courts can interpret and apply laws governing federal elections and consider challenges to them under federal law, including the Constitution. But they have no authority to strike those laws down under state constitutions, let alone a freestanding power to contrive their own voting rules and congressional maps. The U.S. Constitution often assigns powers and duties to the “states” generally, but Article I’s Elections Clause directs that the “times, places and manner” of conducting congressional elections shall “be prescribed in each state by the legislature thereof,” unless overridden by Congress. The Electors Clause similarly vests the “manner” of choosing presidential electors in “the legislature.”

In McPherson v. Blacker (1892), the U.S. Supreme Court recognized that the Electors Clause “leaves it to the legislature exclusively to define the method” of choosing electors and that this power “cannot be taken from them or modified by their state constitutions.” In State Legislature v. Arizona Independent Redistricting Commission (2015), it held that “redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking.”

Still, it’s no wonder plaintiffs and state judges have felt emboldened to buck these limitations. The decision of a state supreme court can be appealed only to the U.S. Supreme Court, which has shied away from such cases. Around the same time the justices declined to hear the 2020 Pennsylvania case, they turned back a request to block North Carolina officials from altering legislatively enacted mail-in ballot deadlines. This year, they denied emergency requests to block judge-made maps in North Carolina and Pennsylvania from being used in November.

Election-law cases present unique timing considerations, given the potentially disruptive consequences of changing laws or maps with an election approaching. When courts make changes weeks before a filing deadline or Election Day, the justices’ ability to right the wrong is severely constrained. There’s rarely a serious basis to press the issue after votes have been cast. Those circumstances apply in most election-law cases.

But unlike state-court orders meddling with voting procedures, which typically apply to one election only, congressional maps remain in place until they’re altered, which usually isn’t for a decade. So there’s no timing issue to prevent the court from hearing a redistricting case.

Justices Samuel Alito, Clarence Thomas and Neil Gorsuch dissented from last month’s denial of the North Carolina stay application, arguing that the case was a good vehicle to consider the power of state courts to rework federal-election laws. Justice Brett Kavanaugh wrote separately to say that the court should take a case raising the issue, but this one came too close to the 2022 election. North Carolina’s House speaker has petitioned the court to take the case in its next term. If it does, a decision would likely come next summer, nearly a year and a half before the 2024 election.

The court’s failure to resolve this issue could spell catastrophe. If the 2024 presidential vote is close in decisive states, the result will be an onslaught of litigation combining all the worst features of the 2000 and 2020 election controversies. The court’s precedents in this area all point toward legislature supremacy but leave the door cracked enough for canny litigants, abetted by state judges, to shove it open and seize electoral advantage. To avoid a constitutional crisis, the justices need to articulate with clarity that state courts can’t rely on state constitutions or their own judicial power to alter either congressional redistricting maps or voting rules in federal elections.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/how-to-avert-a-2024-election-disaster-supreme-court-mail-in-ballot-drop-box-covid-election-rules-pennsylvania-new-york-north-carolina-11650820394

Why the Electoral Count Act Is Unconstitutional

By Mike Luttig and David B. Rivkin, Jr.

March 6, 2022, in the Wall Street Journal

Regarding Thomas Berry’s letter “The Electoral Count Act’s Constitutional Role” (Letters, March 1): The ECA in its present form gives Congress essentially unfettered authority to invalidate state-certified slates of presidential electors. This is profoundly unconstitutional.

As we pointed out in our op-ed “Congress Sowed the Seeds of Jan. 6 in 1887” (March 19, 2021), the Framers, after much debate, determined to give Congress no substantive authority to select the president and vice president, except in the rare instance in which no candidate gains an Electoral College majority. The Constitution’s Electors Clause gives state legislatures plenary authority in choosing how to select electors. It allows Congress to determine only the day on which the Electoral College casts its votes.

The Framers’ choice reflected separation-of-powers considerations—if Congress could select the president, this would make the executive branch a subordinate, and not a coequal, branch. This would greatly augment the power of the federal legislature, which the Framers were determined to limit. Moreover, disputes over the selection of presidential electors involve a legal, not a political, discernment, that is appropriate for a judicial body. Congress is not a court.

To the extent that disputes about presidential electors arise, they can be resolved by courts. When state legislatures determine the manner of selecting electors, they exercise power granted to them by the U.S. Constitution, making these determinations a unique species of federal law. Hence, any disputes about specific selection of presidential electors involve the application of federal law. Since the power to determine what federal law requires rests with the judiciary, the federal courts have the primary responsibility to resolve these disputes.

To facilitate timely resolution, Congress should enact a statute providing for an expeditious judicial handling of any presidential elector-related challenges, with the Supreme Court as ultimate decision maker. The only power that Congress legitimately possesses here is a purely ministerial authority to receive the letters featuring certified state electoral results, have them opened by the vice president and counted in the presence of both houses. Congress should amend the Electoral Count Act to reflect this constitutional reality. Holding itself out as able to overturn the people’s will and choose the president will add to political polarization and inspire future violence, putting Congress itself at risk.

Mr. Luttig served as a judge on the Fourth U.S. Circuit Court of Appeals (1991-2006). He advised Vice President Mike Pence on the 2020 vote certification. Mr. Rivkin served at the Justice Department and White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: https://www.wsj.com/amp/articles/congress-electoral-count-act-2020-overturn-elector-constitution-11646426616

Europe’s quandary buttresses the Supreme Court’s answer to ‘major questions’ on energy

By David B. Rivkin, Jr., and Eric Schmitt

March 3, 2022, in The Hill

Russia’s invasion of Ukraine has crystalized the critical importance of America’s energy security, as our European allies — increasingly dependent on Russian fossil fuels to keep the lights on when “renewable” power sources fail to meet demand — balance their need to confront Vladimir Putin with maintaining their access to Russian oil and gas. These events make all the more important the pending ruling by the U.S. Supreme Court in West Virginia v. EPA, a landmark case challenging the Environmental Protection Agency’s Obama-era Clean Power Plan — which could drive the U.S. itself toward inadequate, unreliable domestic energy sources and inevitable dependence on foreign countries.

The case was argued this week before justices who appeared clearly skeptical of EPA’s power to impose radical transformation of our energy sector through presidential fiat. Much of the argument focused on the “major questions doctrine.” This doctrine bars regulatory agency interpretations of federal statutes that would give those agencies the power to answer contentious and far-reaching policy questions that are properly handled by Congress itself, without a clear, explicit grant of statutory authority from Congress delegating its resolution to the agency.

The major questions doctrine is a firewall for democracy against the never-ending efforts by American progressives to impose policies, such as the Green New Deal, which they have been unable to achieve through the ballot box. But, whenever progressives hold the levers of executive authority, as they did during President Obama’s administration and do again under President Biden, they have turned to executive action and contorted constructions of existing statutes to accomplish their dreams.

Look no further than Biden’s all-out assault on domestic energy production, with a goal of fully decarbonizing the U.S. power sector by 2035. He unilaterally canceled the Keystone XL pipeline on the first day of his administration and froze the oil and gas leasing process for federal lands, stopping future oil and gas projects in their tracks. Biden’s administration has worked to impose crippling restrictions on ever broader swaths of the domestic energy industry through the president’s social cost of carbon edict (seeking to measure domestic benefits of energy production against the supposed worldwide costs of climate change), a new methane rule that will subject for the first time thousands of existing oil and gas facilities to costly air regulations, and other administrative assaults.

Biden barged ahead with these efforts, despite proper statutory authority. Instead, his administration has dealt with the lack of proper statutory authority through “work-arounds” that rely on aggressive over-readings of existing statutes.

Conservatives, including the nation’s Republican state attorneys general, have fought back, suing to protect America’s energy security and hold the president to the statutory and constitutional limits that constrain his power. State attorneys general have scored major wins on this front, blocking Biden’s social cost of carbon effort and winning an order compelling the restart of the oil and gas leasing process for federal lands.

If the oral argument on the Clean Power Plan is any indication, the tide is set to turn against the relentless push to find unheard-of-authority on major policy issues hidden in existing statutory schemes. And, aside from the constitutional imperative of preventing the executive branch from poaching on congressional authority by running afoul of the major questions doctrine, the policy consequences of allowing Biden to twist his statutory authority beyond recognition are dire. They are illuminated when one looks across the Atlantic, where Russia is waging the first open war of aggression by a major power in Europe since World War II.

Energy is the foundation of Russia’s power and influence. Large swaths of Western Europe rely on Russian oil, natural gas and the energy infrastructure that Russia has built. This dependence is in no small part because countries such as Germany have ceded their energy security. Late last year, Germany announced the closure of three of its six remaining nuclear power plants, with a commitment to close the last three by the end of 2022. Berlin did this, giving up 12 percent of its 2021 electricity production capacity, despite an energy crisis that was spiraling out of control, with energy prices in Europe repeatedly breaking records and the prospect of blackouts.

In pursuing an unyielding climate agenda — for example, a goal of making renewables such as wind and solar meet 80 percent of power demand by 2030 — Germany laid siege to its own power grid and now relies on Russia to fill the gaps. To be sure, in the past several days, German Chancellor Olaf Scholz announced that these commitments will be reconsidered; it remains to be seen what Germany ultimately does.

The fight against executive overreach and the relentless progressive campaign against our energy security couldn’t be more important. America isn’t immune to Europe’s reality. The United States is projected to lose its net oil exporter status this year. When domestic gas prices started to skyrocket during the summer, the Biden administration turned to the OPEC and its allies such as Russia — the OPEC+ group of countries — to pump more oil to help the American consumer and the world economy. That is unacceptable — especially since OPEC+ rebuffed Biden.

A Supreme Court decision in West Virginia v. EPA that builds on the major questions doctrine and acknowledges the clear statutory and constitutional limits on abuses of executive power is essential. Coming on the heels of Biden’s Supreme Court losses on his administration’s eviction moratorium and vaccine mandate, it would be dispositive in the fight against executive overreach and would neutralize the president’s ability to remake America’s production and consumption of energy without Congress’s consent.

David B. Rivkin Jr. served in the Justice Department and White House Counsel’s Office in the Ronald Reagan and George H.W. Bush administrations. He practices appellate and constitutional law in Washington and represented a coalition of states that challenged the Obama administration’s Clean Power Plan. Although he is not involved in West Virginia v. EPA, his law firm represents a petitioner in that case.

Eric Schmitt is attorney general of Missouri and a candidate for U.S. Senate. Missouri was one of the petitioners in West Virginia v. EPA.

Source: https://thehill.com/opinion/judiciary/596569-europes-quandary-buttresses-the-supreme-courts-answer-to-major-questions-on

A Look at Ketanji Brown Jackson’s Judicial Record

By David B. Rivkin, Jr., and Andrew M. Grossman

February 28, 2021, in the Wall Street Journal

Judge Ketanji Brown Jackson is known as a capable, diligent and collegial jurist. Hers isn’t the straightforward ascent of most Supreme Court nominees. After a clerkship with Justice Stephen Breyer, she spent a decade as what she called a “professional vagabond”—a junior litigator at a Washington firm; an associate of Kenneth Feinberg, the lawyer known for administering compensation funds for victims of terrorism and other disasters; an assistant special counsel for the Sentencing Commission. She would be the first justice to have served as a public defender. One gets the reassuring sense that, like Clarence Thomas, Judge Jackson hasn’t had her sights trained on a Supreme Court nomination since law school.

The same could be said of Judge Jackson’s time on the bench. As a federal trial court judge in the District of Columbia (2013-21), she oversaw a docket consisting largely of run-of-the-mill employment disputes, contract cases, freedom-of-information actions, criminal prosecutions and the like. Her opinions are generally workmanlike, making it easy to discern the rare case that inspired her passion.

At the top of that list is her decision ordering then-President Trump’s former White House counsel Don McGahn to testify before a House committee investigating purported Russian interference with the 2016 election. Judge Jackson rejected out of hand Mr. Trump’s assertion of a kind of immunity from testimony recognized by the courts for well over a century. “Presidents are not kings,” she wrote. “This means that they do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

The decision rejects—and describes as “strident”—the government’s argument that parties generally need authorization from Congress to bring suit in federal court. Congress did authorize suits over Senate subpoenas, but not House suits. What may seem an arcane procedural point speaks volumes: Much judicial mischief has involved courts appointing themselves to exercise power and impose liability in the absence of any law. Judge Jackson’s rationale, echoing those of many Warren and Burger court decisions, is that the Constitution empowers courts to vindicate “intrinsic rights.”

Also revealing is Judge Jackson’s decision blocking a Trump policy expanding eligibility for “expedited removal” to aliens who have been in the country illegally for up to two years. The statute gives the Homeland Security Department “sole and unreviewable discretion” over expedited removal, which should give the courts nothing to review. Judge Jackson asserted that although the policy itself was unreviewable, she could pass judgment on the “manner” in which the agency made it. She found it lacking based on the agency’s failure to engage in notice-and-comment rulemaking and its failure to consider adequately the “downsides of adopting a policy that, in many respects, could significantly impact people’s everyday lives in many substantial, tangible, and foreseeable ways”—which would seem to be a consideration of policy, not manner. The U.S. Court of Appeals for the D.C. Circuit reversed this ruling.

Judge Jackson was also reversed in a case in which she sided with federal-employee unions challenging presidential directives to streamline collective-bargaining terms, limit time spent on union business during work hours, and make it easier to fire employees for misconduct or unacceptable performance. Her decision bends over backward to excuse the unions from the requirement that they bring disputes to the Federal Labor Relations Authority before going to court, and the D.C. Circuit reversed it on that basis. But her take on the merits also raises concerns. In her view, the government’s general duty to bargain and negotiate “in good faith” precludes the government from taking topics off the bargaining table (like the availability of grievance proceedings for outright employee misconduct). She acknowledged that position went well beyond the governing precedent. While that would be a boon to the unions, it would disable presidential control of the federal workforce to account for changing circumstances.

Since joining the D.C. Circuit in June 2021, Judge Jackson has handed down only two opinions on the merits, both in the past month. The first, in another federal-union case, is notable. Siding again with the union, Judge Jackson rejected an FLRA decision holding that collective bargaining is required only for workplace changes that have a “substantial impact” on conditions of employment, as opposed to the much lower “de minimis” standard that had previously prevailed. The opinion concludes that the agency failed to explain adequately its adoption of the new standard—a holding that rests on what legal scholar Jonathan Adler called an “erroneous and unduly strict” application of Supreme Court precedent imposing a light burden on agencies changing their policy positions. They need merely “display awareness” of the change and identify “good reasons for the new policy.” To this, Judge Jackson’s opinion adds the requirement, which the Supreme Court had rejected, that the agency show the new policy to be better than the old one.

After reviewing so many of Judge Jackson’s judicial opinions, we have no doubt of her capabilities. We can’t discern whether she has any cognizable judicial philosophy that would guide her approach to the sort of fraught legal questions that the Supreme Court confronts term after term. Her loudest advocates are confident that she’ll serve them well, and her record supports that view. With 50 Democratic senators, that may be enough.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/ketanji-brown-jackson-judicial-record-supreme-court-nominee-public-defender-dc-circuit-biden-11646001770

Biden’s Lawless Vaccine Mandate

OSHA’s job is to promote safe workplaces, not to dictate medical decisions to employees.

By David B. Rivkin Jr. and Robert Alt

Sept. 28, 2021, in the Wall Street Journal

President Biden told unvaccinated Americans this month: “We’ve been patient, but our patience is wearing thin. . . So, please, do the right thing.” He backed up this request with a series of new regulatory mandates, including one from the Occupational Safety and Health Administration, which directs businesses with 100 or more employees to make vaccination a condition of employment.

The Covid vaccine has been widely hailed as a modern scientific miracle. Yet as a means to increase nationwide vaccination rates, the OSHA mandate far exceeds the authority Congress granted the agency, and if the president can order private companies to dictate such terms of employment, his power to coerce citizens in the name of public health might as well be unlimited. This would both be profoundly unconstitutional and fundamentally transform the relationship between the government and the people.

The Occupational Safety and Health Act of 1970 authorizes OSHA to enact rules that are “reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” But the Biden mandate is unreasonably and unnecessarily broad. As announced, it applies to all employees, even those who work at home, as millions have done during the pandemic. It’s simultaneously too narrow, failing to require vaccination for contractors, customers and other nonemployees who may be present at the work site.

It’s overbroad in another way: Previous Covid infection doesn’t excuse employees from the vaccine requirement. Natural immunity tends to be more robust and longer-lasting than vaccinated immunity, according to Marty Makary of the Johns Hopkins University School of Medicine. Worse, Dr. Makary says, there is evidence that people who already have natural immunity are at heightened risk of vaccine side effects caused by an augmented inflammatory response. For these reasons, lawsuits have already been filed challenging employer vaccine mandates as applied to employees with natural immunity.

Another concern is that the administration’s interpretation of the OSHA statutory language presents a “delegation” problem. If Congress delegates discretion to an agency without a proper limiting principle, it violates the separation of powers. To avoid this constitutional problem, the courts will have to give the statute a more restrictive reading. Coming up with a meaningful judicially enforceable principle would not be easy.

Additional problems arise from the administration’s urgency. In imposing the vaccination requirement immediately, OSHA will bypass the ordinary notice-and-comment rule-making process and issue what’s known as an Emergency Temporary Standard. OSHA has used that legal authority only 10 times in 50 years. Courts have decided challenges to six of those standards, nixing five and upholding only one.

The OSH Act imposes stringent limits on emergency standards precisely so OSHA can’t easily circumvent the ordinary rule-making process. The government has to prove that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and that using the emergency process is “necessary to protect employees from such danger.” Courts subject emergency standards to a what appellate courts call a “hard look” review, a more stringent standard than for ordinary economic regulations.

The White House justifies the mandate as a proportional response to the spread of Covid’s Delta variant, which is straining hospital capacity in some states. But the mandate is nationwide and indefinite, not tied to Covid rates. The administration’s vaccine rhetoric is therefore another reason to regard the standard as legally suspect. In addition to Mr. Biden’s remark about his patience wearing thin, White House chief of staff Ron Klain retweeted a journalist’s comment that “OSHA doing this vaxx mandate as an emergency safety rule is the ultimate work around for the Federal govt to require vaccinations.”

All this suggests that the administration’s statutory reliance on workplace safety is pretextual. OSHA was established to ensure workplace safety, not to act as a “work around” for achieving other political or policy objectives. In Department of Commerce v. New York (2019), the Supreme Court struck down an otherwise defensible census regulation because the Trump administration’s grounds for instituting it were pretextual.

Beyond these statutory issues lie constitutional concerns. Many commentators are under the impression that Jacobson v. Massachusetts (1905), in which the Supreme Court upheld a vaccine mandate, settles all such questions. But that case involved a state law and a local regulation, not any federal action—a crucial distinction. The states have plenary police power to regulate health and safety. Congress has only those limited powers enumerated in the Constitution. That wouldn’t include the authority to impose a $155 fine (today’s equivalent of the $5 at stake in Jacobson) on an individual who declines to be vaccinated, much less to prevent him from earning a livelihood.

Defenders of the Biden mandate surely will justify it as a delegation pursuant to Congress’s power to regulate interstate commerce. But the actual target of the rule is individual medical choices, not commercial ones. If a personal decision not to buy medical insurance can’t be characterized as “commerce”—as the Supreme Court held in NFIB v. Sebelius (2012), the ObamaCare case—how can the decision not to be vaccinated?

Further, if public-health benefits are sufficient to justify an OSHA vaccine mandate, what principle would limit the agency’s authority? Could it ban employees from smoking or consuming foods containing trans fats while working at home? The public-health profession has already characterized everything from gun ownership to social-media use as posing a serious public-health issue. Could OSHA legitimately police these, too, even away from the workplace?

Higher vaccination rates would be a public good. But our nation’s Founders understood that much mischief can be done under the theory of being “for your own good” and provided limits to government authorities accordingly. Even during a pandemic, the Biden administration would do well to respect those limits.

Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Alt is president and CEO of the Buckeye Institute, a think tank engaged in public-interest litigation and policy.

Source: https://www.wsj.com/articles/biden-lawless-vaccine-mandate-constitution-occupational-safety-11632841737