Since joining the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh have signaled their desire to reconsider the non-delegation doctrine,[1] a moribund principle of judicial review intended to police the limits of Congress’s ability to delegate its legislative functions. The non-delegation doctrine derives from Article I of the U.S. Constitution and traces its lineage to early 20th century jurisprudence,[2] but it has been decades since the Supreme Court has used it to find an act of Congress or of the executive branch unconstitutional.[3] Given its current makeup, the Court could break that streak as the Biden administration follows through with its September 2021 announcement and issues a vaccine mandate through the Occupational Safety and Health Administration.[4]
There is little doubt federal courts will be called on to decide the constitutionality of the OSHA mandate,[5] and any such case almost certainly would reach the Supreme Court. In addition to the merits of the question itself (i.e., whether OSHA has the statutory authority to issue a mandate and whether Congress has the ability to delegate that policy decision to OSHA in the first place), an intriguing aspect of the case would be how Gorsuch and Kavanaugh might frame the case. Given their stated desire to revisit non-delegation, such a case might be another vehicle to do just that. But it is not clear they would move to that position directly. In the past, both justices have invoked the major questions doctrine as their preferred path to application of non-delegation principles. Because, as Gorsuch wrote, “When one legal doctrine becomes unavailable to do its intended work, the hydraulic pressures of our constitutional system sometimes shift the responsibility to different doctrines.”[6]
The major questions doctrine is generally understood to be a canon of statutory interpretation. Where a congressional grant of authority to an executive branch agency has significant economic and political repercussions, courts look for a “clear statement” of legislative intent. For example, in the recent CDC eviction moratorium case, where the Supreme Court held the moratorium was outside the agency’s authority, the Court explained that it “expect[s] Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance,”[7] which was lacking in that case.[8] The Supreme Court also applied the major questions doctrine in UARG v. EPA to reject the agency’s new greenhouse gas emission standard. It reached that decision in part because the standard would have had a huge impact on the U.S. economy and the governing statute did not clearly grant the authority to act as the agency claimed:
When an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.[9]
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