The Supreme Court’s Vaccine-Mandate Decision Illustrates the Ascendency of the “Major Questions” Doctrine in Administrative Law.
By John Grimm
Last week’s ruling in National Federation of Independent Business v. OSHA was big news. The Court stayed the enforcement of OSHA’s rules requiring employers with more than 100 employees to be vaccinated against COVID-19, or else wear a mask and take a weekly test. Technically, the Court didn’t strike down the rules, but it found a strong likelihood of success on the merits (necessary for any stay of an agency rule pending review) which makes it difficult to envision any other result when the merits are finally heard.
The majority opinion—written per curiam so we don’t know the author—focuses on OSHA’s statutory authority. OSHA is empowered to promote “safe and healthful working conditions” by enacting rules that are “reasonably necessary or appropriate to provide safe or healthful employment.” The majority reasoned that COVID-19 is a universal hazard, not a workplace hazard, and held that OSHA’s mandate does not permit it to regulate public health crises just because they happen to affect workplaces. In dissent, Justice Breyer examined the same statutory authority and administrative record to argue that the risk of COVID exposure is a workplace hazard that OSHA was entitled to regulate against.
There could be a robust academic debate over the majority and dissent’s arguments, but the most interesting aspect about the opinion for the future of administrative law is Justice Gorsuch’s concurrence. All of the opinions recognized that agencies only possess power that Congress grants them, but Justice Gorsuch took the opportunity to elaborate on a particular nuance to that rule which he has written on before: the major questions doctrine.
Under the modern conception of administrative agency power, Congress cannot cede all legislative authority to the executive—a rule known as the non-delegation doctrine—but it can delegate many powers to agencies as long as it provides an “intelligible principle” for what the agency’s mandate is. A related concept, the major questions doctrine, provides that when an agency acts in an area of “vast economic and political significance,” the Court looks for a clear expression of Congressional authority.
The majority cited this rule, but its analysis largely focused on how the agency’s rule fell outside its statutory powers. Justice Gorsuch, in contrast, focused heavily on such factors as Congress’s COVID legislation—which did not include instructing OSHA to set vaccine mandates—and the fact that a majority of the Senate voted to disapprove of OSHA’s rules. Essentially, he looked in the places where one would expect to find a clear Congressional expression of intent to grant OSHA extraordinary powers, and did not find such an expression.
The OSHA case could indicate a growing interest among the Court in examining agency actions under the major questions doctrine. Justice Gorsuch recently wrote extensively about that doctrine, and the non-delegation doctrine, in his dissent in 2019 in Gundy v. United States. Although he noted that it has been decades since the Court last struck down an agency action on non-delegation grounds, Gundy, OSHA, and Alabama Association of Realtors—in which the Court upheld a stay of DHS’s eviction moratorium holding that Congress must authorize the department to take such a step—show that the Justices are increasingly turning to the major questions doctrine to resolve questions of agency authority.
When major policy initiatives fail, it is often because of highly technical principles of administrative law. The Court’s growing interest in non-delegation and the major questions doctrine shows that this may have become a useful tool in the toolbox for practitioners of administrative law.
 Slip Op’n at 2 (quoting 29 U.S.C. §§ 651(b), 652(8).
 Id. (quoting Alabama Ass’n of Realtors v. Dep’t of Health and Human Servs., 594 U.S. ___, ___ (2021) (per curiam)).
 139 S. Ct. 2116.
I read with interest the summary of the vaccine mandate case. I agree with the writer’s focus on Justice Gorsuch’s concurring opinion where he focused heavily on various factors in search of Congressional intent as pertains the OSHA statute and accompanying rules. Specifically Gorsuch was looking for authority, if any, that would support the extraordinary powers exercised by OSHA. As the summary states, Justice Gorsuch reviewed Congress ‘COVID legislation as well as the Senate’s majority vote disapproving the rules enacted by OSHA.
He did not find the clear expression of intent he was after although the summary states that Justice Gorsuch looked in the places where one would expect to find the legislature’s intent. However the places mentioned may well be where liberal Justices look for intent but for Gorsuch, a well known textualist in the tradition of Justice Scalia, his opinion was a major departure from anything he has previously written.
In a blog authored by Professor Anita Krishnakumar of Georgetown Law School, Gorsuch’s opinion was “stunningly atextual”.She acknowledges that the opinion was almost entirely about the major questions doctrine but found the “complete lack of textual analysis” to be strikingly at odds with the Justice’s history. The Professor concludes that Gorsuch’s “total abandonment of textual analysis” is an indication that the conservative Justices, in political cases are prepared to do what is necessary to reach “their preferred interpretive outcomes.” Or put another way to allow their political bias to dictate how they decide a case.