The Vaccine-Mandate Case Is About So Much More Than Vaccine Mandates

Today, the Supreme Court will hear oral argument in a pair of cases challenging President Joe Biden’s vaccine mandates in two contexts: private workplaces with more than 100 employees and health-care facilities that participate in Medicare and Medicaid.

Ostensibly, these cases are before the Court to resolve whether a president can even temporarily require vaccine and testing protocols during a pandemic to protect public health. But the questions the Court may examine are much more sweeping, with enormous implications for the future of the executive branch and the massive swaths of American life it regulates.

Article I of the Constitution establishes that “all legislative Powers herein granted shall be vested in a Congress of the United States,” but it doesn’t define “legislative powers” except to suggest that they are something other than the nominal, undefined powers granted to the other two branches of the federal government—the president’s “” under Article II and the federal courts’ “” under Article III. As a practical matter, legislative or “lawmaking” power might as writing rules that operate prospectively to constrain conduct. “Thou shalt not discriminate on the basis of disability,” for example, is a law that Congress effectively created in 1990 with the Americans With Disabilities Act.