The Supreme Court’s mandate review may be the last chance to rein in agencies By Marc Garrett
As if we needed confidence in yet another American institution destroyed, we were treated with a true spectacle of deceit in last Friday’s Supreme Court’s oral arguments on OSHA’s vaccine mandates. With the hysterical hyperbole of a CNN anchor, Justice Sonia Sotomayor, a self-proclaimed “wise Latina woman,” refuted that description by declaring, “We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
Despite her Yale pedigree, or perhaps because of it, as physicist Wolfgang Pauli famously quipped, she’s “not even wrong.” You must at least be in the ballpark to be wrong, especially when the facts are easily accessed on HHS and CDC websites. As of today, hospital capacity is at 79% with only 18% being used for COVID; there are 140 COVID hospitalizations of children; and cumulative child COVID cases since its inception total just 5520. Ventilator use, which proved deadly at the beginning of the pandemic, is used in only 3% of the cases.
Extending her epidemiological deception to the legislative record, Sotomayor explained, “OSHA proposed regulations, it didn’t act fast enough, and Congress told it to act faster.” The problem is, not only did Congress do no such thing, it did exactly the opposite! Only a month ago, the Senate, with Democrat support, passed S.J. Res 29 to nullify OSHA’s vaccine mandate.
As implacably vacuous as Sotomayor’s hysterics were, Justice Elena Kagan plunged the Court to a level so benighted it made Robert’s “it’s a tax” seem like wisdom from the Oracle of Delphi. While her progressive ramblings are certain to inspire the army of “experts” infesting every crevice of DC’s bloated bureaucracy, they betray a profound contempt for constitutional law:
So who decides? Should it be the agency full of expert policymakers and completely politically accountable through the President? This is not the kind of policy in which there’s no political accountability. If people like this policy, they’ll go to the polls and vote it that way. If people don’t like it, they’ll vote that way. This is a publicly — a politically accountable policy. It also has the virtue of expertise. So, on the one hand, the agency with their political leadership can decide. Or, on the other hand, courts can decide. Courts are not politically accountable. Courts have not been elected. Courts have no epidemiological expertise. Why in the world would courts decide this question?
Because it raises one of the biggest constitutional questions facing the country today: at what point will the Court enforce the Constitution’s nondelegation doctrine? It’s incredible that a sitting justice on the nation’s highest court didn’t even understand the question.
After the preamble, the very first line of the Constitution says, “All legislative powers herein granted shall be vested in a Congress of the United States,” and therefore, cannot be delegated anywhere else; hence, the nondelegation doctrine.
Yet, if studying the Supreme Court has taught us anything, it’s that justices possess a superpower worthy of “The Incredibles” to rationalize away the Founders’ clear written intent. In 1928’s JW Hampton v. U.S., the Court re-wrote the Constitution, stating Congress could delegate its legislative duty if it did so framed with some “intelligible principle.” Since then, this fundamental breach of the Constitution has been challenged only once, by none other than Court’s only sitting true originalist, Justice Clarence Thomas, in 2001:
I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power. I believe that there are cases in which the principle is intelligible and yet the significance of the delegated decision is simply too great for the decision to be called anything other than ‘legislative.’ On a future day, however, I would be willing to address the question whether our delegation jurisprudence has strayed too far from our Founders’ understanding of separation of powers.
But this isn’t Kagan’s only failure because her claim that OSHA’s mandate is “completely politically accountable through the President’’ ignores over 100 years of the Court’s equally egregious jurisprudence. Madison wrote “the president alone should possess the power of removal [of executive branch employees] from office [creating] an unbroken chain of dependence” to a president accountable to the people. Today Madison’s premise, as well as Kagan’s assertion, is laughable.
The assault on the Unitary Executive goes back to Congress’s “Tenure in Office Act of 1867” requiring congressional approval to terminate high-ranking individuals. Andrew Johnson was famously impeached for violating it. Later, when FDR tried to remove the FTC commissioner, the Court ignored Article II’s clear language—“executive Power shall be vested in a President”—and effectively amended new language to the Constitution, that the power of removal is not illimitable when the agency function is quasi-legislative and quasi-judicial.
It only got worse when JFK issued executive order 10988 granting government employees the right to unionize, which was codified into the Civil Service Reform Act of ‘78. Between the Court’s rulings and collective bargaining contracts, the president has been literally emasculated in carrying out “his great responsibility” of exercising executive branch functions. As Common Good founder and author Phillip Howard lamented, “the links in the chain of authority have been broken.”
Despite Sotomayor’s hysterics and Kagan’s constitutional obliviousness, with OSHA about to ram through the most costly and far-reaching mandates ever—a mind-numbing 154 pages—and Congress on record against it, all under the guise of an emergency, and all without public comment, if today is not Thomas’s promised day to reevaluate the Court’s delegation jurisprudence, then that day will never come.
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