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Why You’re (Likely) Wrong About What the Constitution Actually Is


A recent Supreme Court case rejected a vaccine-or-test scheme mandated by OSHA that would have affected millions of Americans. The decision underscored important features of the Constitution - but the press response highlighted how little many Americans know (or care) about the way it works.

The late Antonin Scalia spoke before the Senate Judiciary Committee in 2011 about the unique features of the US Constitution. His address, which you can see here, is well worth your time, and I encourage you to watch the video if you have a spare seven minutes. However, one phrase in particular points to a fact about the American system that is both enormously overlooked and profoundly important: “Think of the word ‘constitution,’ it doesn’t mean a bill [of rights], it means ‘structure.’”

Scalia is right, of course, on the most literal level. A constitution is that which “constitutes” something, what makes it what it is. And this speaks to an oddity in the way we have come to think of the Constitution, a quirk which Scalia also points out: we have come to associate the Constitution, and constitutionality, with the Bill of Rights and other rights allegedly enumerated in the Constitution, and whether or not a given law or act of government violates one of them.

Obviously, protecting constitutionally guaranteed rights is a worthy goal, but this obscures the fact that the Constitution is not mainly concerned with specific, enumerated rights of the citizenry. Rather, the US Constitution – in stark contrast with other documents to which it is often compared in history courses, like the French Declaration of the Rights of Man and the Citizen – is at root a blueprint of government. Scalia refers to the Bill of Rights as an “afterthought” of the Constitutional Convention, and he is essentially correct on that point: the Bill of Rights was conceived of as a sort of emergency brake, meant to curtail what the more skeptical delegates feared would be the excessive powers of the new federal government. The main advocates of the new Constitution, on the other hand, assumed – rightly, in my opinion – that the document’s genius lay in its careful balancing of opposed interests, with powers split between three branches of the government, two houses of the legislature, the states, the federal powers, and the people.

As the years have gone on, however, awareness and appreciation of these facets of the Constitution have seemingly declined. The particularity and specificity of the American project has been sidelined in favor of broad appeals to more ethereal concepts – “democracy,” but not any particular system of government; “liberty,” but not any particular means of preserving it. Hardly anyone will stand up and say they do not stand for freedom, but Scalia is again correct in saying that this is why “every banana republic in the world has a bill of rights… just words on paper, what our Framers would call ‘a parchment guarantee.’”

The real guarantee of liberty is not found in a bald statement of purpose on paper, but in arranging the mechanisms of government such that tyranny does not find an easy foothold. Anyone can make promises, and anyone can break them. What prevents a party – whether a king, a ruling party, or a committee – from encroaching on the rights of others is a well-constructed system that allows disparate interests to protect themselves, and that is exactly what the US Constitution accomplishes by delineating with great care and thought the powers and prerogatives of each part of the state apparatus.

That is why much of the press response to the recent Supreme Court decision in National Federation of Independent Business v. Department of Labor has been so disheartening. We will momentarily examine some of the specifics of the case, but in summary, the Court ruled that the Occupational Safety and Health Administration (or “OSHA”) could not issue a mandate for all large employers to implement a vaccine-or-test policy, or at least that they could not do so unilaterally, without specific congressional authorization. Sadly (and predictably), numerous outlets took the opportunity to decry the decision as political obscurantism on the part of a “right-wing” Supreme Court and a threat to the government’s power to act on any number of important issues. The truth is that the Court’s decision should only be seen as partisan if left-wing politics innately entails that the executive branch acts without check – I invite the reader to form his own conclusion on that point.

OSHA and the court: background

On November 5, 2021, the Department of Labor issued a requirement for businesses with more than one hundred employees to implement programs under which their workers would need to be vaccinated or to supply a negative test for COVID-19 every week (procured at the employees’ time and expense). Exceptions were made for employees working exclusively outside or remotely, but, as the Court’s opinion noted, “only nine percent of landscapers and groundskeepers qualif[ied] as working exclusively outside” under the standard. It was estimated that more than eighty million Americans would be affected by the mandate.

Almost immediately, OSHA’s action came under challenge from a number of litigants, and the Fifth Circuit Court of Appeals issued a stay on enforcement of the mandate pending further review, in the case BST Holdings, LLC v. Occupational Safety and Health Administration. However, the stay was vacated by the Sixth Circuit Court of Appeals during the process of consolidation of the various challenges, after which BST Holdings v. OSHA was consolidated with National Federation of Independent Business v. Department of Labor. The Supreme Court entered the picture when the Sixth Circuit’s decision to vacate the stay was appealed.

Ultimately, the Supreme Court found that the original stay imposed by the Fifth Circuit was valid, on the basis that OSHA’s mandate was unlikely to survive review. Quoting the opinion of the Court from last year’s Alabama Association of Realtors v. Department of Health and Human Services – which, in turn, refers to the opinion in the case of Utility Air Regulatory Group v. EPA – the Court reaffirmed that Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” OSHA’s policy, which “draws no distinctions based on industry or risk of exposure to COVID–19,” and which would seriously affect tens of millions of Americans, was found to lack the clear and obvious authorization from Congress that would legitimate it.

A threat to the “administrative state” – or to democracy?

Much of the media response to the Court’s decision was, to put it bluntly, histrionic. Kelsey Reichmann of Courthouse News Service fumed that the decision relied on “a made-up doctrine” (more on which later), “setting the stage for the dismantling of the administrative state.” The Court, she argues, ruled that OSHA lacks “the authority to mandate vaccines or testing against a deadly pandemic because Congress didn’t specifically say they could do that… Because in the ‘70s Congress didn’t put in writing that OSHA could protect its workers from a deadly pandemic that would come 50 years later, the agency loses its power to do so.” Case Western Reserve University School of Law professor Jonathan Alder’s comparatively sober article was nevertheless published by Reason under a headline that seems designed to elicit panic: “Why the Supreme Court’s Decision in NFIB v. OSHA May Be Even Worse News for Climate Regulation than You Thought.”

Perhaps most hysterical of all, Vox’s Ian Millhiser ran a piece alleging that the Court’s decision was a threat to democracy itself, an argument that relies on the premise that a rule made by an executive agency (since agencies are created by the legislation of Congress, an elected body, and overseen by the president, an elected official) is somehow more democratic than a ruling made by the Supreme Court (whose members are nominated by the president, an elected official, and confirmed by the Senate, an elected body). Conveniently, Millhiser seems to ignore the fact that the Court is subject to the majority rule of its members while OSHA is bound by the dictates of its single secretary. The article also refers to “arcane legal doctrines” that are “so vague that they are easily manipulated,” a topic we will address shortly. But it is worth noting that Millhiser has either misunderstood or simply ignored the fact that the Court’s decision would revert the question of vaccination policy to Congress (again, an elected body) and take it out of the hands of OSHA (an unelected bureaucracy). Setting aside the fact that the American constitutional order does not automatically privilege “more democratic” processes (since the US is a republic, not a democracy – a fact often ignored), the Court is still calling for a more directly “democratic” mechanism for crafting public health policy. Congress is a far more transparent organization than OSHA, and, unlike OSHA, the voting public has direct control over its composition. It seems that the issue for Millhiser and Vox is less that the ruling is “undemocratic” than that, simply – they do not like the ruling.

Tellingly, one of the repeated criticisms of the decision was, in so many words, that no piece of legislation specifically prevents OSHA from taking the action it did. This betrays a profound misunderstanding about American governance. It seems to assume, on the one hand, that all law is created equal – an act of Congress is just as valid as the Constitution. (In actuality, it is probably more that critics like Millhiser and Reichmann believe the Constitution is vague and nonspecific to the point that it can be safely ignored, except in select cases, usually when some elements of the Bill of Rights are involved. But not all elements of the Bill of Rights.) It also implies that law – both statutory and constitutional – acts on government bodies negatively, by defining what they may not do. This is a serious misunderstanding, and one that we will investigate later in this essay.

“Made up doctrines” – major questions and nondelegation

At the heart of many of the complaints raised over the Court’s decision is the allegation that the Court makes recourse to “made up doctrines” to invalidate the OSHA regulation, namely the so-called “major questions” doctrine and the nondelegation doctrine.

Reichmann in particular complains that the Court has seemingly been less willing to follow the Chevron doctrine, a precedent from the 1984 case Chevron USA, Inc. v. National Resource Defense Council, Inc. that says, in essence, that judges should usually defer to the way executive agencies interpret the laws they’re charged with enforcing, so long as the interpretation is reasonable, and so long as Congress has not explicitly addressed the issue previously. Rather than continue to follow the Chevron precedent, Reichmann argues, the Court has relied on the “major questions” doctrine to place new limits on the power of the agencies. Millhiser adds nondelegation doctrine to his gripe about the major questions doctrine and alleges that both are simply convenient smokescreens for the Court to strike down decisions it dislikes for partisan reasons.

While much of the discussion about the Court’s decision on the OSHA mandate has focused on the major questions doctrine, it is arguably simply an elaboration on one prong of the Chevron doctrine – that the interpretation of law offered by an executive agency must be reasonable. As John O. McGinnis writes for Law & Liberty, “If the question before the Court concerns important issues about the scope of state power, and not merely technical details, it is the Court’s prerogative to resolve without deference to the agency’s interpretation.”

The heart of the matter, however, lies much closer to the nondelegation doctrine, which was not an explicit part of the Court’s decision, but arguably serves as its unspoken assumption. Nondelegation entails that Congress cannot reassign the powers it holds from the Constitution to another entity, for the simple (and excellent) reason that the Constitution gave Congress those powers, and not any other body. This by no means prevents Congress from empowering the executive branch to make certain kinds of decisions, but it does mean that close congressional oversight needs to be exercised over these decisions. Congress cannot simply wave its hand and assign an agency like OSHA power to regulate “workplace health” without also providing guiding principles for how this power can be exercised.

By way of analogy, if you were building a house, you might hire a general contractor and allow him to hire subcontractors. But if the carpenter he hires makes substantial alterations to the layout of your living room, you would most likely be unsatisfied if the explanation for this is, “The carpenter thought the staircase you wanted built would look better on the other wall.” You would probably regard this as a serious dereliction of duty on the part of your general contractor. Just so, if Congress – whose power to legislate is derived fundamentally from the people – freely hands over its lawmaking power to another party, it has abdicated its constitutional responsibility.

The heart of the Constitution

The U.S. Constitution was not an attempt to construct a radically new social order – a fact that sets it apart from a number of other documents to which it is frequently, and unhelpfully, compared. It does not purport to create (or discover) new rights: it is concerned with arranging the levers of government so as to prevent existing and acknowledged rights from being violated. Even the wording of the Bill of Rights demonstrates this: the First Amendment, for instance, reads “Congress shall make no law… abridging the freedom of speech, or of the press.” Two features of this statement are critical for a proper understanding of the Constitution.

First, it is a limitation on Congress, a specific body of the government. Does this mean that the Framers intended to leave the door open for the executive branch to curtail free speech? No – the fact is that they assumed the reader already knew the rest of the Constitution, which empowers only Congress to make law. Accordingly, if Congress cannot make a law that abridges the freedom of speech, no one at all can do so.

Second, the First Amendment does not lay out what the freedom of speech and the press consist of. The freedom of speech is a presumed quantity, one rooted in the centuries-old legal tradition of English common law. The First Amendment, along with the rest of the constitutional system, is meant to serve as a mechanism for preserving the rights that Americans broadly agreed they already possessed. There is a reason that the celebrated passage on “certain inalienable rights” is from the Declaration of Independence and not the Constitution: the Declaration, unlike the Constitution, was an expression of political principle, one that made plain the assumptions that undergird American society. The Constitution is not; it is something at once more prosaic and more practical – a rulebook. And, in a rulebook, who is allowed to do something, and when and how, is just as important as what is permitted in the first place. (Imagine if a Monopoly player tried to collect the rent due to another player simply because the game allows rents to be collected.)

The Court’s admirable restraint

In light of this, far from a threat to the democratic order or a threat to all of American governance, the Court’s decision on the OSHA mandate was remarkably measured and cautious. Rather than flatly declare that requiring large employers to implement vaccine-or-test programs is illegal, or even saying that an executive agency may not impose such a requirement, the Court’s opinion simply stated that OSHA itself lacks the authority to do so:

OSHA is charged with regulating ‘occupational’ hazards and the safety and health of ‘employees’… Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere that people gather. That kind of universal risk is no different from the day to dangers that all face from crime, air pollution, or any number of communicable diseases. 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.

Nothing about the Court’s decision suggests that vaccine mandates are, in and of themselves, unconstitutional. Nor does it even preclude the possibility that OSHA or another executive agency could be invested with the authority to impose one. Those issues have not been tested in this case. It is very possible – perhaps even likely – that the Court would rule against such actions on other grounds, but the fact is that making such sweeping rulings was not necessary here.

What the Court did in this case is tantamount to telling the Biden administration to go back and do its homework the right way instead of taking sloppy shortcuts. It is, undeniably, more difficult to enact policy via legislation than through executive action, and this is really the unspoken basis for critiques of the Court’s decision. But, as Scalia points out in his address, the difficulty is intentional. When and where executive agencies are allowed a free hand to enact regulations with the force of law, the practical consequence is that Congress – not only the sole body vested with lawmaking power by the Constitution, but also the organ of government most directly tied to the political will of the American people – is effectively bypassed. Whereas a member of the House of Representatives must stand for election every two years and votes as a matter of public record, employees of executive agencies are more often than not functionally anonymous and hold their positions (at best) only indirectly from the public. (Senators, of course, enjoy longer terms in office than Representatives, but are even more easily scrutinized thanks to the much smaller size of the Senate.)

Asking legislators to legislate

None of this means that Congress cannot act through agencies, nor does it mean (as proponents of governance through the agencies often allege) that Congress cannot avail itself of expert opinion, of which there is often plenty in the agencies. Congressional hearings are designed for this exact purpose and have the salutary effect of making expert opinion a matter of public record. Moreover, expert opinion alone is not always a sufficient ground for policy making: a decision that is “best” from a strictly technical perspective may be impractical or detrimental to the public good when considered holistically. (For instance, devoting one hundred percent of the federal budget to public schools may very well be the best way to maximize educational outcomes, as many an “expert educator” would testify, but it does not take a brilliant political analyst to realize this is not the most pragmatic position.)

Congress, however, is the organ of government appointed to make such holistic decisions and is likely, given the way it is composed, to represent a broad swath of interests and philosophies far better than an executive agency. And, again, nothing is to stop Congress from authorizing greater powers for the agencies – it just has to, first of all, muster the conviction (and cooperation) to do so, and, second, to continue to exercise close scrutiny over those it empowers.

These are not impossible tasks. There is no reason why our legislators can no longer legislate. The only reason that, to commentators like Millhiser and Reichmann, doing so seems like a heavy burden is that we have become accustomed to the easy (and often unconstitutional) way of governing. Our forebears, frequently operating under political conditions at least as divisive, and much more precarious, than ours, did not consider it too great a task. They took for granted an understanding that we must reclaim – that legislators are not simply granted power to make law. They are charged with a solemn duty to do so. If law is to be made, it must be made by Congress, and no other.

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