Major questions about the major questions doctrine

Although the U.S. Supreme Court's opinions about workplace vaccine-or-test requirements have received much media commentary from vaccine advocates and detractors, these cases are much more than flashpoints in COVID-related culture wars. Instead, the court's ruling in NFIB v. OSHA/Ohio v. OSHA, 2022 DJDAR 549 (Jan. 13, 2022), is important because signals a newfound willingness from the court to enforce constitutional and statutory constraints on the federal government's size and scope.

The basic principles of the majority's unsigned opinion are simple: The Occupational Safety and Health Administration, like other regulatory agencies, is a creature of statute. It possesses only the authority that Congress provided.

Congress is expected to speak clearly when authorizing an agency to exercise powers of vast economic and political significance. In OSHA's case, its authorizing statute specifically gave it the power to set workplace safety standards, not enact broad public health measures. Because its vaccine-or-test emergency temporary standard was the latter -- White House Chief of Staff Ron Klain notably retweeted a quip that the OSHA standard was the "ultimate workaround" for a broader vaccination mandate that the federal government lacked authority to enact directly -- the Supreme Court stayed the vaccine-or-test rule.

A concurring opinion by Justice Neil Gorsuch, joined by Justices Samuel Alito and Clarence Thomas, elaborates on the lines of legal reasoning leading to this result. Among them is the major questions doctrine, which requires Congress to speak clearly when assigning to an executive agency authority to make "decisions of vast economic and political significance."

Why is the major questions doctrine important? As Justice Gorsuch says, "it ensures that the national government's power to make the laws that govern us remains where Article I of the Constitution says it belongs -- with the people's elected representatives. If administrative agencies seek to regulate the daily lives and liberties of millions of Americans, the doctrine says, they must at least be able to trace that power to a clear grant of authority from Congress."

Congressionally enacted laws often contain minor gaps, and executive branch agencies may lawfully issue rules that fill them in. But this gap-filling power does not permit agencies to assume powers far beyond those granted by statute. Or, as Justice Antonin Scalia once colorfully put it, Congress generally does not "hide elephants in mouseholes." Whitman v. American Trucking Ass'ns, Inc., 531 U.S. 457 (2001).

The major questions doctrine is closely related to the nondelegation doctrine, the constitutional principle that Congress cannot delegate its lawmaking powers to executive branch agencies. Like the major questions doctrine, the nondelegation doctrine safeguards individual liberty by ensuring that new laws governing Americans' lives are subject to constitutionally required democratic processes.

For most of the last 85 years, the Supreme Court has upheld delegations so long as Congress specified an "intelligible principle" for the agency to follow. Even the original intelligible principle test was in tension with the constitutional text that "all legislative Powers herein granted shall be vested in a Congress of the United States." But the test was applied in an extremely lax manner over decades, such that courts approved virtually every broad delegation of power.

Language delegating broad powers to agencies is not unique to OSHA. The Clean Air Act gives the Environmental Protection Agency authority to issue ambient air quality standards that are "requisite to protect the public interest." Several broadcasting-related statutes give the Federal Communications Commission the power to issue any rules that are in the "public interest, convenience, or necessity."

Robust nondelegation doctrine doesn't only protect regulated businesses. It is at issue in a case about the Centers for Disease Control and Prevention's authority to expel migrants and asylum seekers for purported public health reasons. Huisha-Huisha v. Mayorkas, 21-5200 (D.C. Cir. March 4, 2022).

Why are such broad delegations common? As several scholars have explained, Congress likes dodging the hard questions and political responsibility associated with spelling out the policy details it delegates to regulatory agencies. See David Schoenbrod, "Power Without Responsibility: How Congress Abuses the People through Delegation," Yale University Press (August 30, 1995)). But Congress should not be able to evade its accountability to the American people by passing the buck for tough decisions to largely unaccountable executive branch bureaucrats.

These legislative and judicial evasions have had the predictable result of accelerating growth in the executive branch's power relative to Congress. From 1995 to 2016, Congress enacted 4,312 laws, while federal agencies issued 88,889 rules.

"If Congress could hand off all its legislative powers to unelected agency officials," Justice Gorsuch wrote in concurrence in the vaccine-or-test rule case, it would "dash the whole scheme of our Constitution."

Without such limits on agency powers, OSHA would essentially become a "roving commission to inquire into evils and upon discovery correct them." While several of the justices have before signaled in dissent a willingness to revive nondelegation doctrine (Gundy v. United States, 139 S. Ct. 2116 (2019)), NFIB v. OSHA is a clearer sign that the Supreme Court is no longer willing to let agencies act as such freewheeling commissions and will enforce constitutional constraints on their power. 