Separation of powers is crucial—even during a pandemic

Last week, the Supreme Court blocked an attempt by the Biden Administration to implement a de facto vaccine mandate on much of the American workforce. 

However, what’s largely missed in partisan coverage of the case is the fact that the court wasn’t really settling a policy dispute about vaccination requirements, nor was it considering the ethical or legal implications of mandates in general. Instead, it was merely ruling on the process through which the Biden Administration sought to implement the policy. 

Predictably, this fact was lost on many proponents of vaccine requirements. Even Gov. Sisolak told reporters he was “disappointed” in the ruling — as if the wisdom of the policy, itself, was the only thing the court should have considered in the case. 

However, process matters. And an executive branch agency charged with regulating workplace safety simply isn’t authorized to implement sweeping pandemic mitigation policies without expressed authorization from congress.

The majority ruled that “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather… Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

In other words: If the Biden administration wants to require vaccination (or testing) as a condition of employment for millions of private-sector workers, he better ask Congress to pass an actual law to that effect. The ruling was yet another reminder from the judicial branch that our electeds are limited by the structure of our constitutional republic — a lesson that isn’t well received by those in the political class who routinely see such limits as threats to their policy ambitions. 

Biden has repeatedly asked executive branch agencies to expand their powers beyond those enumerated for them by Congress, just as his predecessors similarly sought to use executive action as an alternative to the cumbersome legislative process. Lest we forget, President Trump effectively stole funds from the military to build his politically unpopular border wall after Congress refused to do so on its own, and President Obama bragged about his willingness to use his “phone and pen” in the event of legislative gridlock. 

Even on the state level, such willful disregard for constitutional limitations is profound among politicians more concerned about political wins than the integrity of our democratic institutions. The end of pretty much every legislative session here in Nevada, for example, is a masterclass in the willful suspension of constitutional constraints as the majority party manipulates the process to jam through contentious bills without meaningful deliberation or debate. 

In the age of COVID, the degree to which electeds have been willing to subvert the constitutional order out of political expediency has been, perhaps, more transparent than it otherwise would be. Across the nation, for example, governors have clung to declarations of emergency well after the need for immediate or unprecedented action had passed. 

In many cases, those expansions of gubernatorial powers have occurred without so much a peep from the very legislative branches they are circumventing with each one of their emergency orders. As it turns out, many legislative bodies haven’t been terribly jealous of their powers throughout the pandemic — likely because it’s more politically convenient to outsource difficult, contentious or otherwise divisive issues to the governor’s office than deal with them head on and be held responsible for the consequences. 

It’s for that same reason, on the federal level, that Congress has long surrendered quasi-lawmaking authority to executive branch agencies — actively handing the president ever more decision-making authority on issues pertaining to broad public policy. 

The result has been a predictable expansion of executive overreach on both the state and federal level — and an increasing expectation from voters that the people they elect to lead those branches will actually be capable of unilaterally solving problems normally subject to legislative gridlock. 

To be sure, legislative or congressional debate isn’t an expedient or even terribly effective way of implementing policy — especially in our modern era of division and partisanship. When Congress can barely agree on budgets, debt ceiling increases or other routine matters of legislative responsibility, discussion over contentious public health policies would be utter chaos. However, the political absurdity of our current partisan landscape isn’t justification to abandon the process intentionally designed to protect Americans from the whims of deeply unpopular (or even popular) presidents acting unilaterally. 

Certainly, it’s understandable…