Here is the key passage with the court’s unsigned opinion: “Although Covid-19 is a risk that occurs in many workplaces, it is not professional risk at most. Covid-19 can spread at home, at schools, during sporting events and anywhere else people congregate.” Because the law gives the Occupational Safety and Health Administration the authority to enact standards that are “reasonably necessary or appropriate to provide safety or health employmentNot only is Covid-19 spreading in the workplace, but the Occupational Safety and Health Administration (OSHA) has acted outside its authority. The vaccine or testing mandate “does not draw any discrimination based on industry or risk of exposure to Covid-19,” thus It can’t be done.”[M]Rescuers and paramedics face the same regulations as paramedics and meat handlers,” for example.
The flaw in the majority reasoning is that this line drawing is not required by the actual 1970 law (the Occupational Safety and Health Act) that created OSHA. Back in 1979, the court recognized the Industrial Federation Chamber vs. American Petroleum Institute That OSHA has “broad authority… to issue different types of standards.” Thus Justice Stephen Breyer explained in his dissenting opinion: “The standard is at the heart of the agency’s job of ‘protecting employees’ from ‘serious danger’ that comes from ‘new risks’ or exposure to harmful agents,” as laid down in a relevant part of the Act. Occupational Health and Safety.
What the majority are really saying, then, is that they don’t like it how strong Congress gave it to OSHA in the first place. The question of whether Congress can delegate its legislative powers to executive branch agencies has been debated for decades. But since the 1930s, the Court has essentially allowed Congress to give agencies the power to make decisions under Article 1 of the “necessary and correct” clause, in part on the theory that courts lack the kind of expertise that agencies have. Furthermore, even though they are not elected, the agency’s employees are subject to whoever does. is being 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 power to fill in the inevitable voids in the legislation. When executive branch agencies respond, the resulting laws are often known as “regulations.” But it actually operates with the same force of law as a law of Congress itself. Legal criticism of the practice of handing over legislative power to agencies has not gained traction in the Supreme Court for nearly a century. Only a few court decisions in the New Deal era have invalidated Congressional decisions to delegate legislative power Under the so-called doctrine of non-delegation.
The court’s majority opinion indicates that this Supreme Court is willing to strike down an undisclosed portion of federal regulations that do not follow the express and detailed authority of Congress. Most disturbingly, conservatives in the court apparently decided that Congress might only do so if the subject matter of the law referred to what the court deems a “key question,” a vague, unspecified term that does not have textual support in the Constitution. Since our polarized Congress is shockingly dysfunctional when it comes to substantive politics, it does not bode well for the legislative needs of the country.
So, there is a looming threat from the Supreme Court on the viability of federal regulations as the constant bread and butter means to pass laws that cover nearly every aspect of American life, from workplace safety and environmental protection to financial regulation and national child welfare. These government representatives are not elected or liable to lose their jobs at the polls. If a new threat to human health arises that affects workers by the millions, Congress would do well to foresee the specific threat in legislation that would enable the agency to deal with it—or work together and pass de facto emergency legislation under Article 1, of course. The horrors and unknowns of Covid-19 refute the viability of this option. Essentially the court says, “Unless states step in to tackle the next epic epidemic, you guys are on your own.”
Judge Neil Gorsuch’s consensus view illustrates conservative theory well, even explicitly linking it to the doctrine of non-delegation. When the federal government acts, he explained, “[i]Must … act in accordance with the separation of powers in the Constitution. And when it comes to this obligation, this Court has established at least one firm rule. “We expect Congress to speak clearly” if it wishes to uphold executive agency decisions “of significant economic and political importance.” For this proposal, Gorsuch cites a decision from 2019 and one from 2021 — both modern and both issued in an era of conservative-leaning contemporary jurists dominating the court. Gorsuch notes that “[w]We sometimes call this the doctrine of the chief questions.”
To be clear, the so-called principle of key questions has been formed by the Supreme Court. It is not in the constitution. But, he added, “the doctrine of key questions is closely related to what is sometimes called the doctrine of non-delegation.” A wolf in sheep’s clothing.
Since 1984, the pragmatic doctrine of agency systems review has not been the dogma of the chief questions. Instead, it is specified in a historical case called Chevron Corporation, USA, Inc. v. Natural Resources Defense Council, Inc. Under this decision, the Supreme Court resisted the power to rewrite the regulations by injunction, instead holding that as long as Congress grants the agency decision-making power by law, the agency can reasonably exercise its discretion to fill in loopholes in the legislation by issuing rules. If the agency does so, the courts must acquiesce in the agency’s policy-making judgment, based on the theory that they have more relevant substantive expertise than federal judges. For example, the public is undoubtedly better served by experts at the Nuclear Regulatory Authority who make rules about reactor safety and security than by unelected black-robed publicists.
Conservative Key Questions doctrine places that power firmly in the judicial branch, ultimately handing it over to Supreme Court justices who can now decide which laws they like and dislike with virtually no oversight or restrictions. This amounts to a constitutional seizure of power. But not by agencies. It is by the Supreme Court itself.