Here is the key passage from the court’s unsigned opinion: “While Covid-19 is a risk that many workplaces face, it is not professionally danger in most. Covid-19 can and does spread at home, in schools, at sporting events and anywhere else people gather.” Because the statute empowers the Occupational Health and Safety Administration to enact standards that are “reasonably necessary or appropriate to ensure safe or healthy working conditions occupation‘ she argued, and not only is Covid-19 spreading in the workplace, OSHA was acting outside of its authority. The vaccination or testing mandate “does not differentiate by industry or risk of exposure to Covid-19” and therefore cannot be enforced. “[M]Most lifeguards and lineman are subject to the same regulations as paramedics and meat packers,” for example.
The logical flaw in the majority’s argument is that this line drawing is not mandated by the actual 1970 statute (the Occupational Safety and Health Act) that introduced OSHA. As early as 1979, the court recognized Industrial Union Department v American Petroleum Institute that OSHA “has broad authority…to promulgate various types of standards.” Judge Stephen Breyer, in his dissenting opinion, therefore stated: “The standard falls to the core of the agency’s mission to protect ’employees’ from ‘serious hazards’ arising from ‘new hazards’ or exposure to harmful substances,” as in the one set out relevant part of the Occupational Health and Safety Act.
So what the majority are really saying is that they don’t like it how much power Congress gave first place to OSHA. The question of whether Congress can delegate its legislative powers to executive bodies has been debated for decades. But since the 1930s, the court has fundamentally approved by Congress Giving agencies legislative power under the “necessity and reasonableness” clause of Article I, partly on the theory that courts lack the kind of expertise that agencies have. In addition, agency employees, even if not elected, report to someone who is Accountable to the electorate: the President.
This is known as delegation of legislative power. Instead of keeping its legislative power to itself, Congress gives the executive branch the power to fill in the inevitable gaps it leaves in legislation. When executive branch agencies respond, the resulting laws are often referred to as “ordinances.” But they operate with virtually the same force of law as an act of Congress itself. Legal criticism of the practice of delegating legislative power to agencies has not received attention in the Supreme Court for nearly a century. Only a tiny handful of court decisions in the New Deal era overturned Congress’ decisions to delegate legislative powers according to the so-called non-delegation doctrine.
The court’s majority opinion signals that this Supreme Court is willing to strike out an undisclosed segment of federal regulations that do not follow the explicit, detailed authority of Congress. And even more worryingly, the court’s conservatives appear to have ruled that Congress may do so only if the subject matter of the bill involves what the court considers an “important issue,” a nebulous and undefined term that lacks textual support in the constitution has. Because our polarized Congress is woefully dysfunctional when it comes to substantive politics, it bodes ill for the country’s legislative needs.
So there looms a looming threat from the Supreme Court to the enforceability of federal regulations as the constant bread-and-butter vehicle for passing laws that cover virtually every aspect of American life, from workplace safety and environmental protection to financial regulations and national child welfare. And these government actors are not elected or are vulnerable to losing their jobs at the ballot box. When a new human health threat emerges that affects millions of workers, Congress had better have predicted the specific threat in the legislation that will enable an agency to deal with it — or pull together and pass actual Article I emergency legislation. Of course, the horrors and unknowns of Covid-19 belie the feasibility of this option. The court is essentially saying, “If states don’t step in to address the next epic pandemic, you’re on your own folks.”
Justice Neil Gorsuch’s unanimous opinion spells out conservative theory well, even explicitly linking it to the doctrine of non-delegation. If the federal government acts, he stated: “[i]t must act in accordance with the constitution’s separation of powers. And when it comes to that obligation, this court has established at least one firm rule. ‘We expect Congress to speak clearly’ when it wants to delegate decisions ‘of enormous economic and political importance’ to an executive agency.” For this proposal, Gorsuch cites a decision from 2019 and one from 2021 – both recent and both issued in an era of modern conservative jurists dominating the court. Gorsuch states that “[w]We sometimes call this the doctrine of the big questions.”
To be clear, the so-called Major Questions doctrine was established by the Supreme Court. That’s not in the constitution. But Gorsuch added that “the doctrine of the big questions is closely related to what is sometimes called the doctrine of non-delegation”. A wolf in sheep’s clothing.
Since 1984, the operational doctrine for reviewing agency regulations has not been the major issues doctrine. Instead, it is called in a groundbreaking case Chevron, USA, Inc. v Natural Resources Defense Council, Inc. Pursuant to that decision, the Supreme Court opposed the power to rewrite regulations by court order, instead ruling that so long as Congress grants the agency the power to make regulations by law, the agency may reasonably exercise its discretion to fill in the gaps to fill the legislation through the enactment of regulations. When the agency does so, the courts should rely on the agency’s policy-making judgment, based on the theory that they have more relevant expertise than federal judges. For example, the public is undoubtedly better served by experts from the Nuclear Regulatory Commission making rules about reactor safety and security than unelected generalists in black robes.
Conservatives’ major issues doctrine firmly entrenches that power in the judiciary, ultimately turning it over to the Supreme Court justices, who can now decide what laws they like and don’t like with virtually no oversight or restraint. This amounts to a constitutional seizure of power. But not from agencies. It’s from the Supreme Court itself.