The Business, Entrepreneurship & Tax Law Review


Tyler A. Dodd


At the height of the COVID-19 pandemic, the Biden administration looked for a way to stop the spread of the virus. To stop the spread, the Biden administration announced a COVID-19 vaccine mandate for all businesses with over 100 employees and for all healthcare facilities receiving funds from the Center for Medicare and Medicaid Services (“CMS”). OSHA and CMS would administer the mandates, respectively. The agencies needed to administer the vaccine mandate because Congress failed to enact a mandate, and the agencies had broad and indefinite regulatory power in enacting public health measures. In NFIB v. OSHA the United States Supreme Court put the business vaccine mandate on hold relying on the major questions doctrine, which states that administrative agencies may not decide questions of economic or political significance without clear congressional authorization. In Biden v. Missouri, the Court allowed the vaccine mandate to go into effect for healthcare workers. The Court was satisfied that the Secretary of Health and Human Services had adequate statutory authority to implement the mandate for healthcare workers. These two decisions left unclear implications for businesses within the realm of the nondelegation and major questions doctrines. Then in West Virginia v. EPA, the Supreme Court added some clarity to the major questions doctrine but failed to fully explain when the doctrine applies. This article posits that the United States Supreme Court should adopt an originalist and more robust nondelegation doctrine to protect businesses from overreaches by the federal government and administrative agencies. While the Court’s recent use of the major questions doctrine was a step in the right direction, a more robust nondelegation doctrine is needed.

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