Margot Cleveland Explains The Healthcare Case

Yesterday, after the SCOTUS came out with its rulings in the two mandate cases, I stated that, overall, I agreed with the dissent—while recognizing the differences. In doing so I quoted from Alito’s separate dissent, but referenced Thomas’ dissent that was joined by Alito, Gorsuch, and Amy. This morning, Margot Cleveland delves into both cases at The Federalist—finding the opinions distressingly weak:

The Supreme Court’s Ruling On Vaccine Mandates Is Frighteningly Weak

I want to look at Cleveland’s views on the Healthcare case, because the two dissents raise core issues for our country’s future.

In his dissent Thomas first presents the posture of the case, Biden v. Missouri, as it came before the Court. Please note that Thomas says nothing about the injustice of the mandate, about the Nuremburg code, about the safety of the injections, or any truly substantive matters:

Two months ago, the Department of Health and Human Services (HHS), acting through the Centers for Medicare and Medicaid Services (CMS), issued an omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID–19 vaccine. Covered employers must fire noncompliant workers or risk fines and termination of their Medicare and Medicaid provider agreements. As a result, the Government has effectively mandated vaccination for 10 million healthcare workers.

Two District Courts preliminarily enjoined enforcement of the omnibus rule, and the Government now requests an emergency stay of those injunctions pending appeal. Because the Government has not made a strong showing that it has statutory authority to issue the rule, I too would deny a stay.

To obtain a stay, the Government must show that there is (1) a reasonable probability that we would grant certiorari; (2) a fair prospect that we would reverse the judgments below; and (3) a likelihood that irreparable harm will result from denying a stay. Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). Because there is no real dispute that this case merits our review, our decision turns primarily on whether the Government can make a “strong showing” that it is likely to succeed on the merits. Nken v. Holder, 556 U. S. 418, 426 (2009). In my view, the Government has not made such a showing here.

In his concluding paragraph, Thomas reiterates that, in his view, the Government hasn’t satisfied the requirements for staying the preliminary injunction. In doing so Thomas specifically states that, in his view, the case is “not about the efficacy or importance of COVID–19 vaccines”:

These cases are not about the efficacy or importance of COVID–19 vaccines. They are only about whether CMS has the statutory authority to force healthcare workers, by coercing their employers, to undergo a medical procedure they do not want and cannot undo. Because the Government has not made a strong showing that Congress gave CMS that broad authority, I would deny the stays pending appeal. I respectfully dissent.

Note that Thomas appears to presume that, had Congress given CMS the authority to coerce healthcare workers to be injected with experimental medications, that would somehow be OK. It would pass constitutional muster. None of the other dissenters took exception to that view. Thomas’ dissent rests strictly on whether CMS has the statutory authority it claims or not.

So, here is Margot Cleveland, addressing this case and the dissenting opinion. First she explains Thomas’ opinion, basically quoting Thomas making the same point as cited above—CMS lacks the statuory authority that it claims. Here is the passage of the statute that CMS relies upon, as quoted by Thomas:

CMS is authorized to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions,” and to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs, …”

And here is Cleveland basically quoting Thomas:

The mandatory vaccination rule issued by the Centers for Medicare and Medicaid Services (CMS) failed to find statutory support in the governing statutes, Justice Thomas explained. While Congress authorized the CMS to “publish such rules and regulations . . . as may be necessary to the efficient administration of the [agency’s] functions,” and to “prescribe such regulations as may be necessary to carry out the administration of the insurance programs,” the vaccine mandate has no more than a “tangential” connection to the management of Medicare and Medicaid, Thomas wrote.

Nor did the various random statutory provisions grant HHS the authority to “require[] millions of healthcare workers to choose between losing their livelihoods and acquiescing to a vaccine they have rejected for months,” Justice Thomas explained, before stressing: “Vaccine mandates also fall squarely within a State’s police power, and, until now, only rarely have been a tool of the Federal Government. If Congress had wanted to grant CMS authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly. It did not.”

Again, note that neither Cleveland nor Thomas are suggesting that the Court should have based their ruling on factors such as, for example, the experimental nature of these injections and the deceptive way in which emergency use authorization (EUA) was obtained, nor on their safety record—or lack thereof. Cleveland quotes—without comment—Thomas’ view that the State’s have the authority to mandate vaccines and that Congress could grant such authority to federal agencies if it so desired.

Yesterday, in a comment, I quoted from Alito’s separate dissent. Note that Alito’s objections are based on standard administrative law—the law governing the promulgation of regulations by the agencies of the federal government:

"Neither CMS nor the Court articulates a limiting principle for why, after an unexplained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment."

Again, this argument prescinds from considering the injections themselves, although Alito at least strongly hints—but politely—that the healthcare workers are being subjected to a shabby travesty of justice. Basically, Alito is arguing …

That when Congress passes a law there is a lengthy process of hearings in which We the People get to offer some input. Nowadays, however, the reality is that most “laws” are actually regulations promulgated by administrative agencies of the Executive Branch. Those agencies are supposed to get input from interested parties, but in this case CMS and HHS didn’t bother. That offends Alito and the other three dissenters—rightly so, IMO. Here, Alito explains this:

… “under our Constitution, the authority to make laws that impose obligations on the American people is conferred on Congress, whose Members are elected by the people.”

“Elected representatives solicit the views of their constituents, listen to their complaints and requests, and make a great effort to accommodate their concerns,” Justice Alito continued, noting, “today, however, most federal law is not made by Congress. It comes in the form of rules issued by unelected administrators.” Under these circumstances, then, the notice-and-comment period proves indispensable, Alito explained—unless, that is, you are the Biden administration.

And that leads to Alito’s conclusion, as quoted above, that “regulating first and listening later” doesn’t pass muster—presumably constitutional muster.

Now, Cleveland concludes by commenting on all this. Note that she—as I did—also refers to the posture of the case as it reached the Court, and is disappointed that the opinions only considered “the propriety of a stay” rather than “the merits”—by which I presume she means the nature of these experimental injections and the constitutionality of coercing American citizens into participating in a medical experiment:

The Biden v. Missouri dissents, however, did not go far enough. The same separation of powers problems plaguing the OSHA regulation apply equally in the context of the CMS rule. Yet the dissenting justices gave short shrift to those concerns.

The question is, why? Also, why did Gorsuch’s concurrence in the OSHA case only garner three votes, including his own? Was it the procedural posture of the case: A hearing not on the merits but on the propriety of a stay? Was it the time crunch? Was it a desire for more detail and nuance?

Or was it because reaching a truly conservative five-justice majority is as elusive as an end to this pandemic.

Other commentators—and I forget where I read this—are raising the question of whether this case reveals a disturbing reality: whether, for all their fine talk in the past, a majority of the “conservative” justices lack the stomach to systematically take on the Administrative State in a principled way. We’re going to find that out definitively later this year.