Perhaps most significantly, Justice Thomas stressed that the Court has only recently held in Alabama Association of Realtors v. Department of Health and Human Services — the case in which it invalidated President Biden’s eviction-moratorium mandate — that (a) “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance”; and (b) it similarly expects Congress to use “exceedingly clear language if it wishes to significantly alter the balance between state and federal power.” In the HHS mandate, the agency is taking an action that has these ground-shifting effects, even though Congress has not authorized that action in clear language.

That, manifestly, is the main issue in both of the mandate cases. Yet Roberts and Kavanaugh voted with the progressives in the HHS case as if it weren’t an issue, while voting with the conservatives in the OSHA ruling that relied on its being the main issue. This inconsistency may help the swing justices try to assuage media-Democrat critics of the (ostensibly) conservative-leaning Court that it is not “partisan,” that the justices can split the baby just like “moderate” legislators do. But the Court’s role is to say what the law is, not say what pleases the commentariat. Here, the law is that an executive agency doesn’t get to do things that Congress hasn’t authorized — particularly things of huge consequence.

This last point underscores a bigger disappointment for constitutional conservatives in what on balance (and as our editorial argues) is a victory for separation-of-powers principles. There is no hint in either of the two majority opinions that there are effective limits on what the federal government may do. The justices are simply saying that Congress must be clear in its enabling language.