Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA | Election Law Blog

OSHA 29 USC 655

(c)Emergency temporary standards

(1)

The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

In NFIB v. Department of Labor Neil Gorsuch, joined by Samuel Alito and Clarence Thomas concurred in the majority's decision to stay - effectively kill - the OSHA Emergency Temporary Standard compelling large employers to require testing or vaccination of employees as a condition of employment.  Georgetown law prof Anita Krishnakumar points out that only the dissenters paid attention to the text of 29 USC 655(c)(1). It authorizes  OSHA to issue Emergency Temporary Standards if "necessary to protect employees" from "new agents".  Instead the self-described textualist (see Bostick) embraces the textually ungrounded "major questions doctrine" first enunciated not by James Madison or other apostle of limited government but rather by Antonin Scalia.  - GWC

Some Brief Thoughts on Gorsuch’s Opinion in NFIB v. OSHA | Election Law Blog

by Anita Krishnakumar January 15, 2022

*** textualists, and other jurists, have long relied on substantive canons to tip the scales in statutory cases; so what is truly stunning about Justice Gorsuch’s opinion is not its invocation of the major questions doctrine, but its complete lack of any accompanying textual analysis. Usually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon. But neither Justice Gorsuch’s opinion nor the per curiam opinion in NFIB v. OSHA attempts even the pretext of such textual analysis.