I've Been Asked About ... The SCOTUS Mandate Case

And so I’ll punt to law prof Jonathan Turley—because he says what I want to hear. But also because what he says is based on sound constitutional principle, and because it takes note of the growing scholarly and judicial concern over the metastatic federal administrative state. From a jurisprudential standpoint that’s what the mandate case is about. The case will be argued January 7. Turley offers this brief discussion in the context of the TX decision by a federal judge striking down the Head Start mandate, excerpted:

Is the “Workaround” Working? Federal Judge Enjoins Another Biden Mandate in Texas

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What is most notable about these cases is that they focus on the Chevron Doctrine, a doctrine affording agencies great deference in their interpretations and policies. Judge Hendrix found that “the plain language of defendants’ cited authority, the statutory context, and the existing regulations all confirm that the Secretary’s interpretation of ‘performance standards’ is not a permissible construction of the statute. The Court finds that plaintiffs are substantially likely to succeed on their claim that defendants exceeded their statutory authority.”

I have long been a critic of Chevron over its expansion of agency authority. The law is reflective of a dangerous trend in our government with the rise of federal agencies. Federal agencies have become a virtual fourth branch of government and that is one too many in our tripartite system. Agencies have gradually assumed greater authority and independence in the governance of the country, including the expanding role of agencies in resolving political and social controversies.

The vaccine mandates of the Biden Administration have created a target rich environment for justices who want to curtail Chevron, which will make the Jan. 7 arguments particularly interesting.

Bear in mind—this mandate case is a strictly federal case, because it involves a federal agency, OSHA, issuing a mandate/workaround. There will be no punting ‘back’ to the states.