vox.com/22883639/supreme-court-vaccines-osha-cms-biden-mandate-nfib-labor-missouri
Justice Neil Gorsuch. left, talks with Chief Justice John Roberts on the steps of the Supreme Court following his official investiture at the Supreme Court June 15, 2017, in Washington, DC. | Win McNamee/Getty Images

The Court is barely even pretending to be engaged in legal reasoning.

On Thursday, the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.

The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.

There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.

But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.

The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.

But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more...

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