Conservative Justices Express Hostility To Biden Administration’s Power

Conservative Justices Express Hostility To Biden Administration’s Power Talking Points Memo

By Kate Riga

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January 7, 2022 3:39 p.m.

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The conservative contingent of the Supreme Court questioned agencies’ ability to mandate the COVID-19 vaccine Friday, often asking why that power shouldn’t be left to Congress instead. 

“Why doesn’t Congress have a say in this, why isn’t it the primary responsibility of the states?” Chief Justice John Roberts asked, accusing the administration of using disparate agency mandates as a “workaround” to replace congressional action.

That positioning, made clear during oral arguments over two Biden administration vaccine mandates — one for health-care workers at facilities that get federal funding, and one vaccinate-or-test policy for large employers — formed another point of evidence for the increasingly conservative Court’s growing hostility toward executive branch authority, a shift experts have been tracking for years. 

Court watchers predicted that these mandate cases might provide clues about how the now-heavily conservative bench will react to the Biden administration’s attempts to enact policy through the rulemaking process.

Such antagonism towards agency power could prove paralyzing to the Biden administration, if either the current, nonfunctional Senate or a future Republican takeover of one or both chambers cuts off all ability to legislate. 

Many of the Republican appointees to the bench did in fact give voice to skepticism about agency power in general terms, while the small liberal contingent fought back. 

Critics of the movement to strip agencies of their authority have called the shift blatantly undemocratic, vesting judges with decision-making power over oftentimes complex and technical problems instead of the experts that lead those departments, picked by the President who is, in turn, elected by the people. Justice Elena Kagan became their mouthpiece Friday. 

“So who decides?” she asked. “Should it be the agency full of expert policy makers and completely politically accountable through the President?”

“On the one hand, the agency with their political leadership can decide — on the other, courts can decide,” she continued. “Courts are not politically accountable, courts have not been elected, courts have no epidemiological expertise.” 

“Why in the world would courts decide this question?” she asked incredulously.