Can Biden defend his vaccine mandate? The ‘nondelegation doctrine’ may be the challenge

Following President Biden’s announcement of a new nationwide vaccine mandate, Republican public officials and conservative commentators swiftly condemned the measure, labeling it “unconstitutional.” South Dakota Gov. Kristi Noem, for example, tweeted, “My legal team is standing by ready to file our lawsuit the minute @joebiden files his unconstitutional rule.”

But how, exactly, is the federal vaccine mandate unconstitutional? While the belief that “it just feels unconstitutional” is not precise or intellectually satisfying, it is nonetheless a correct instinct. 

Congress is supposed to make laws, not the president. And for nearly a hundred years, something called the “nondelegation doctrine” has ineffectually patrolled the boundary between legislative and executive power. The doctrine provides that Congress cannot simply hand over (or delegate) its lawmaking power to the president. Lawmaking is for Congress, not the president. 

In the 1930s, Congress gave the president the broad power to enact codes for “fair competition.” The president did and, as a result, four Kosher butchers (the Schechter brothers) were prosecuted for selling chickens in violation of the codes. On appeal, the U.S. Supreme Court struck down the codes based on the nondelegation doctrine, explaining that if Congress could allow the president to write laws for “fair competition,” then the president could do whatever he thought “fair.” That’s too much power in the presidency — it’s “delegation running riot,” as Justice Cardozo famously wrote.

Since the 1930s, the nondelegation doctrine largely has been dormant. But it is making a comeback and may form the foundation of a successful challenge to Biden’s COVID-19 vaccine gambit. 

In 2019, four justices of the Supreme Court signaled a willingness to consider whether the nondelegation doctrine should be revived. In that case, the court reviewed a law that gave the attorney general unilateral power to label certain people sex offenders. Although the court upheld the law, Justice Neil Gorsuch dissented, writing that “if the separation of powers means anything, it must mean that Congress cannot give the executive branch a blank check to write a code of conduct governing private conduct for a half-million people.” 

More recently, the Supreme Court used nondelegation principles to strike down the Centers for Disease Control and Prevention’s (CDC) eviction moratorium, billed by the Biden administration as a COVID-control measure. In that case, Congress gave the CDC the power to make regulations that are “necessary to prevent” the spread of diseases. In striking down CDC’s order, the court wrote that Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.” Congress cannot simply give officials the power to do anything “necessary” to stop the spread of disease, just as Congress can’t give the president the power to make laws about “fair competition.” 

If the Constitution permitted such delegations of legislative power, then the CDC could, according to the court, “mandate free grocery delivery to the homes of the sick or vulnerable” and require computer companies to “provide free computers to enable people to work from home.” This isn’t how our American system works. Legislating is for Congress, not the president.

State and local officials similarly have relied on laws that give them authority to make “necessary” regulations to fight COVID-19. In Wisconsin, for example, local health officials have imposed mask mandates, closed schools and imposed capacity limitations based on a state law allowing them to do anything “reasonable and necessary” to prevent disease. At the Wisconsin Institute for Law & Liberty (WILL), where I serve as deputy counsel, we’ve challenged these broad grants of power based on the nondelegation doctrine. 

Biden’s vaccine mandate suffers from a similar nondelegation problem. He’s relying on a provision in the Occupational Safety and Health Act of 1970 that gives the president the power to impose “emergency temporary standards.” The Occupational Safety and Health Administration (OSHA) can impose these standards if the Secretary of Labor believes that “employees are exposed to a grave danger” from a “new hazard.” What’s a “grave danger”? What’s a “new hazard”? The statute doesn’t say, and so it presents the classic nondelegation scenario: Has Congress delegated away too much of its legislative power?

Perhaps instinctually, many Americans believe something is wrong here. This instinct is correct. Congress is supposed to make law, not the president. Biden’s vaccine mandate “scrambles that design,” to quote Justice Gorsuch. 

When the litigation comes, as it undoubtedly will, courts will have to confront whether Congress has given Biden a blank check to impose restrictions in the name of protecting Americans from a “grave danger” or a “new hazard.” Will the president’s legal defense succeed? Time will tell, but the nondelegation doctrine provides a sound roadmap for challenging this COVID mandate and perhaps future ones as well. 

Daniel Lennington is deputy counsel at the Wisconsin Institute for Law and Liberty. Follow him on Twitter @DanLennington.