Who decides? Going forward, unelected judges serving life terms

As the COVID-19 omicron variant spread across the nation, K Street and the entire country waited for the U.S. Supreme Court to decide whether and to what degree the federal government could act to confront the pandemic by requiring vaccines. The lawyers, lobbyists, consultants, and advisers on the street all knew the issue before the Court was even larger than the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS), a regulation that would have affected 84 million workers! What could be larger?

Judicial deference rises and falls

The answer: nothing less than the system of government that has been developed over the last 85 years, as our country grew into a world-leading colossus with a huge, diverse, complicated society. The path has been clumsy and often flawed, with Congress struggling to pass laws of broad application and a civil service laboring to find practical applications of the broad principles.

At the same time, the courts developed standards aimed at ensuring the administrators acted in concert with constitutional requirements and congressional intent but left regulations in place so long as they were rationally related to the law, neither arbitrary nor capricious. The approach came to be called “judicial deference” to the efforts of the specialists who drafted the rules.