“The central question we face today is: Who decides?” So opened Justice Gorsuch’s concurring opinion in NFIB v. OSHA, last Thursday’s decision regarding the Biden Administration’s vaccine mandate for businesses with over 100 employees. In blocking the measure, the Court rightly understood both the answer to this question and the magnitude of its importance.
This question goes to the core of our American experience of politics. On one level, Gorsuch’s question concerned the Constitution’s two essential structures: federalism and separation of powers. Should the national or the state governments possess the power to decide whether to mandate vaccines?
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