As a result, federal mandate cases tend to come down to two related questions: Is the federal government trying to exercise power in a traditional state-law domain; and, if so, has Congress given the federal agency precise, unambiguous authority to take the action in question?

That is why the Biden administration went down in flames on the eviction moratorium. The Supreme Court reasoned that landlord-tenant relations were intrastate in nature and had always been subject to state-law regulation. The court did not grapple with the underlying commerce clause question of whether any component of the federal government, including Congress, had the power to order a delay of rental payments. But it explained that even if we assume Congress has such power, it must make its directives clear.

Congress had not done that. Instead, the Biden administration (through the Centers for Disease Control and Prevention) attempted to mine its authority out of an extravagant and distorted construction of the applicable federal statutes.

The same situation will obtain with the vaccine mandate. Indeed, if Congress had authorized OSHA to issue such a regulation, OSHA would not be scheming to dodge administrative-procedure requirements. The president and his administration know they are in the wrong.