As you can imagine, the constitutionality of the vaccine mandate will be litigated as soon as OSHA issues the rules. The media is running interference, telling the public that challenges to the mandate are “unlikely to succeed.”
Do not believe them.
The legality of the vaccine mandate will be assessed under what is called the major rules doctrine (also known as the major questions doctrine). Under this doctrine, the courts look to (1) whether the agency action is a major rule; and (2) whether Congress has clearly authorized the agency action.
As Justice Scalia stated in 2014, “We expect congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
From here we turn to the first question of the major rules doctrine: there is zero doubt that it is a major rule. It would affect the healthcare decisions – and implicate the personal autonomy – of “some 80 million private sector workers.” It is an action never before taken by OSHA, the Department of Labor, and any other federal agency. It would affect the entire US economy.
In support of my position, we have seen lesser invasive agency rules be determined to be major rules. For example, “rate-regulations” of telephone companies has been held to be a major rule. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218 (1994).
From there we get to the second question: whether Congress has clearly authorized the Department of Labor/OSHA to mandate vaccines. The answer is no.