Explainer Episode 32 – The Vaccine Mandate Cases and the Future of Administrative Law

On January 13, the Supreme Court stayed the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test mandate for large businesses, but allowed a vaccine mandate for staff at facilities receiving Medicare and Medicaid funding to go into effect. An expert panel joined us to break down these rulings’ implications for administrative law, with a particular focus on what they might mean for the future of the non-delegation and major questions doctrines.


Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]


Jack Derwin:  Welcome to Regulatory Transparency Project’s Explainer Podcast, part of RTP’s Fourth Branch podcast series. My name is Jack Derwin, and I’m Assistant Director of RTP at The Federalist Society. Today, I’m excited to be joined by Karen Harned, Ilan Wurman, and Luke Wake to discuss the implications of two Supreme Court decisions regarding the Biden administration’s vaccine mandates. 


Karen Harned is executive director at the National Federation of Independent Business Small Business Legal Center, a post she had held since April of 2002. Ilan Wurman is an associate professor of law at the Sandra Day O’Connor College of Law, where he teaches administrative law and constitutional law. And Luke Wake, our moderator today, is an attorney at the Pacific Legal Foundation. Previously, Luke was a senior staff attorney at the NFIB Small Business Legal Center. And with that, Luke, I’ll pass it over to you.


Luke Wake:  Well, thank you so much. It’s a pleasure to talk to all of you today and to be leading this conversation about, I think, a really important decision. And in the NFIB v. Department of Labor case—this is the OSHA mandate case which we’ll be talking about primarily — although, as noted, on the same day that the NFIB decision came down, there was another case, a related case, involving a different agency and a different vaccine mandate, which we may talk about a little bit as well. 


So without further ado, I think it’s probably good for us to get a little bit of general background about what was going on and this controversy with OSHA. And no better person to ask about that than Karen Harned, who is the executive director at the NFIB Small Business Legal Center. And, of course, NFIB being the lead plaintiff in that case, that was a big deal obviously for the small business community, I assume, with NFIB leading the charge. But, Karen, can you talk to us just a little bit to contextualize this conversation about what was at stake with the OSHA mandate? Can you explain the mandate and the implications?


Karen Harned:  Correct. So after the OSH Act, OSHA’s governing statute that was enacted in I think ’70 or ’71, there is a little-used provision that allows the agency to issue what’s called an emergency temporary standard. And that is only to be exercised when the agency determines there is a grave danger in the workplace that they need to immediately set standards for and do so in a manner where they announce the standards, and the standards immediately take effect, unlike a typical OSHA standard that would go through notice and comment rulemaking. 


So when COVID unleashed itself in the US, there had been actually several opportunities for OSHA to use this power. And starting in May of 2020, they declined to do so. Instead, they directed employers to go to CDC’s website, and they adopted many of CDC’s guidances as just best ways to handle keeping your workplaces safe based on the kind of industry you’re in. And there was very, very specific industry guidance throughout. 


Fast forward to 2021 and the election of President Biden, who initially said he was not going to consider a vaccine mandate — well, it came time — but he did want OSHA to have emergency temporary standard regarding COVID now that we’re a year and three months into the pandemic. And so, there was a lot of lobbying with regards to that issue that we did, and other groups did, saying, “Look, you can’t treat all industries alike. Now, we have vaccines. The threat is much different than it was a year ago when you said you didn’t need an emergency temporary standard.” And after a lot of time and consideration, the agency came out a month after we had originally expected they would do so with an emergency temporary standard, but it only applied to healthcare workers, and it did not apply to broader industry. So we thought we had successfully dodged our bullet there, and we’re going to get to continue to operate as we had been using the best available guidance to keep our workplaces, our employees, and our customers safe. 


Until, at the end of August I believe—or maybe it was the beginning of September—the president announced that, yes, in fact, he did think that a vaccine mandate was needed, and it was going to be needed for any business that had 100 employees or more. And no distinction was really made between industries. It took OSHA until the beginning of November to issue this emergency temporary standard, at which time groups across the country began suing in every court in the nation, saying, “Look, this is outside of OSHA’s authority under the statute.” I mean, that’s the case we made. That’s the case many others made. “And even if OSHA had that authority, they sure can’t do it under this emergency rule where they’re not taking notice and comment when we’re now almost two months and at least three variants into the pandemic.” So that is the background.


Luke Wake:  Yeah. I appreciate that, Karen. But just to clarify, the mandate—I refer to it as a mandate because it was mandating something—but the Biden administration liked to push back and say, “Well, it’s not a vaccine mandate,” because they were giving an alternative. People who didn’t want to — employees who didn’t want to vaccinate could undergo weekly testing and wear masks within the workplace. So they were saying, well, that was an alternative. But this was a rare instance. I’m not aware of any other instance in which OSHA was actually putting the cost of the regulation actually on the employee. They were saying, “Well, the employee, if they go that route, have to pay for the vaccinations — have to pay for the tests on a weekly basis.” So it was an interesting situation. 


But in any event, that seemed to present a Hobson’s choice then to those employees who objected to this medical procedure, the choice between either undergoing it or actually losing their job if they refused. To what extent were the employers concerned about employees actually quitting over this and the impact with the labor market?


Karen Harned:  That was a significant concern. NFIB’s most recent data is showing that 49 percent of all employers are struggling to find workers. That’s up 1 point from 48 percent, which it had been. And these are all just unprecedented levels of having this type of hiring labor shortage. And so, we knew it would be exacerbated because we talked to — well, first of all, OSHA even said in their rulemaking they knew one to three percent of workers would walk off the job. Our numbers—I don’t have specific data—but just based on anecdotal, I mean, there were a lot of my members that thought those numbers were way too low. 


I had one member that had over 100 employees and over 80 businesses, and she was — I’m sorry, probably 500 employees over 80 businesses. But regardless, she ran hair salons and knew that the second this took effect, they would just go to another hair salon that didn’t have to comply with the mandate that was under 100 people because in each of her stores, she only had ten, at most, employees. But because of them putting them all together in one business like hers, she would be subject to the mandate, where her competitors would not be. 


And then, one other point I would just say is, yes, we just keep on calling it—shorthand—the vaccine mandate, but honestly, there were real issues with the testing. First of all, if you know somebody that can get a test, let me know because I’m looking for some right now. Our members could not find any. They were calling panicked when they thought this rule was going to take effect. And you have the whole morale issue that I really don’t think a lot of people have focused on. We had one member in Atlanta that was just going to do testing and masking for all employees regardless of vaccination status because they did not want employees knowing who was and was not vaccinated. They didn’t want that dynamic in the workplace. They did not want that morale buster, if you will, present. And so, I think there were a lot of businesses that would have ended up doing that. 


Luke Wake:  Yeah. Yeah. It’s certainly consequential. And I think this case, as we’re going to get into more in the weeds as we move forward, presented some serious separation-of-powers issues in this case. And I think it underscores, at its core, the separation of powers doctrine, when they come into play, are very significant because there are practical implications for our lives, for our businesses, and so forth. And I want to ask one follow-up question before we kind of get into the weeds of the decision itself. 


Now, you mentioned that ordinarily, OSHA proceeds through certain procedures when they’re imposing rules, and they didn’t do that here because it was emergency regulation and emergency temporary standard. And the standard for imposing an emergency temporary standard, as I understand, it is more stringent than OSHA’s ordinary authority. OSHA’s ordinary authority says that they can impose any health and occupational health and safety standard that they deem necessary or appropriate, which is incredibly open-ended. Versus their authority under the ETS provision to bypass notice and comment, they had to make certain findings of — it was grave danger to the employees and that their finding was necessary. 


But at its core — would you agree with this at its core, what they were ultimately saying was, “We decided that COVID presents a grave danger, and therefore we can do anything in our judgment that’s necessary”? I mean, was there any limitation to the implications of their authority? Could they have done anything, say, that the state governors had done in restricting how businesses operate?


Karen Harned:  Yeah. I think that’s a good point, Luke. I think, basically, OSHA said as long as you can say that this is a danger that is present in a workplace, regardless of whether it’s present other places, that it was within their authority and within their judgment, and they could do whatever they thought needed to combat the danger.


Luke Wake:  Yeah. And that’s certainly, I think, a point that was echoed in Gorsuch’s concurrence—concern that if they adopted OSHA’s interpretation, it would be tremendously open-ended. Can you just briefly walk us through what happened in the lower courts here? How did this get to the Supreme Court so quickly? And ultimately, what was the holding, if you could explain that quickly?


Karen Harned:  Yes. As I indicated, lawsuits were immediately filed once this ETS—the emergency rule—was announced. Within a week, I think, you had lawsuits in basically every circuit court in the country, every appeals court. And in those instances, what typically happens is those cases will ultimately get combined. Prior to that combination, though, and everything going into the Sixth Circuit, we joined the Fifth Circuit case that was already there. And a temporary stay had been granted by that court. We came in as a group of 20 — well, actually, at the time, it might have been more like 15 business associations — but a lot of business associations representing a bunch of different industries there to say, “Look, there is irreparable harm here. We need a stay while we consider — while the courts consider whether or not the rule is legal.” 


So the Fifth Circuit then ended up issuing a stay after we got in that was in effect until all cases went to the Sixth Circuit Court of Appeals. The government asked the Sixth Circuit Court of Appeals where all these cases were housed because they won the lottery. It’s a multidistrict litigation is what it’s called when you’ve got cases in so many different jurisdictions. They won the lottery. Sixth Circuit got it. The government asked them to lift the stay, and they did. 


All of this happened, as you indicated, very quickly. I think that happened at the very beginning of December. So we’re a month into the rule, although it had been stayed by the Fifth Circuit through that time. Now, it’s back in effect until the Supreme Court rules, and we immediately issue, put forward an emergency application with the Supreme Court, asking them to stay the rule, which is what they ultimately did. 


Luke Wake:  Yeah. And they did so in a way that — I mean, technically, it was only — the procedural posture was such that they technically weren’t deciding the merits. But in order to reverse the Sixth Circuit and reimpose the stay, they did so — they spoke to the fact that plaintiffs were likely to prevail on the merits. And my reading is—maybe others are reading this differently—but that they did so with such unequivocal terms that the writing’s on the wall for OSHA, and it seems next to impossible for OSHA to argue anything, but they lose at this point. Is that your reading as well, Karen?


Karen Harned:  That is my reading. And that’s why it’s going to be interesting to see what OSHA does. I mean, it seemed from the White House comments after the decision came down that they saw the writing on the wall, too, and they’re probably not going to be pursuing this. Will they ask for the case to be dismissed at the Sixth Circuit? I don’t know. But at some point, Sixth Circuit would still have to come up with the schedule for briefing and hearing, hear the case, issue an opinion, which ultimately would absolutely have a dissent based on a decision they had already issued earlier. And will they be able to do all that by May 5th, when the emergency standard would no longer be in effect? Highly unlikely. So really, that would just be a lot of work for no gain. So I think OSHA’s going to move on.


Luke Wake:  So I’d like to bring Professor Wurman in on this conversation because he’s got a lot to say. In fact, Professor, if I’m not mistaken, I believe you were cited in the decision by — was it the Gorsuch concurrence? Did I get that right?


Ilan Wurman:  Yeah. My paper, “Nondelegation at the Founding,” in the Yale Law Journal, on the nondelegation doctrine was cited by Justice Gorsuch, Thomas, and Alito in the concurring opinion. Correct.


Luke Wake:  Well, congratulations on that. That’s exciting.


Ilan Wurman:  Thank you.


Luke Wake:  Professor Wurman, I know Karen explained and toplined the practical impact of the decision and the fact that they reversed the Sixth Circuit on the question whether the stay should be in place or not. But there’s a lot at stake here, and I think it’s really important that we kind of dig into the Court’s rationale. As I mentioned previously, the statutory standard for actually issuing an emergency temporary standard required the agency to make a finding that there was grave danger and necessity. So there’s a lot of argument about whether or not there’s grave danger and necessity. 


And instead of actually addressing that question, the Court instead addressed a question of whether it was within OSHA’s statutory authority at all to impose a vaccine mandate and sort of sidestepped entirely those specific textual questions. But it did so by invoking the major questions doctrine, the clear statement rule. Can you walk us through a little bit — your reaction to that and explain a little bit about what that means?


Ilan Wurman:  Sure. It’s not surprising that they did so because they’re overturning the decisions of public health officials. And if you’re going to do that, you don’t want to get on an expertise argument with them. You don’t want to make it out as though the judges are the experts here. And so, they did what any sensible judge would do in that position, which is to make the ruling based on statutory authority. Another route they could have taken, by the way, is this big separation-of-powers argument. They could have said this would violate the Commerce Clause. They could have said this would violate the nondelegation doctrine. But they didn’t actually do any of those things. There’s some overtones of separation of powers. That’s the major questions doctrine, which we can talk about. But ultimately, it was simply based on this idea of, “What does this statute actually authorize the agency to do?” And in the OSHA case — there’s also the companion Medicaid case that we can talk about. 


But in the OSHA case, what is the occupational safety and health act empower OSHA to do? Well, it empowers them to enact or create or promulgate occupational safety and health standards. And what the Court basically reasoned was there must be a difference between occupational risks, occupational hazards, and general risks and general hazards common to everyday activity. So for example, yes, you can require sufficient exits when you’re in your employer’s building in case there’s a fire and you need to evacuate immediately. Yes, you can even require a vaccination if your occupation deals with working with bloodborne pathogens or works specifically with viruses. Those are unique. Those are occupational. 


But OSHA does not have authority to mandate that employers take certain actions to reduce crime, which is general to the entire population. I don’t think OSHA can require the hiring of security guards in general. So that was the idea—that there’s this difference between ordinary hazards, generalized hazards, and occupational hazards. The other thing they said, by the way, is vaccination is different in kind in the sense that suppose the employer — the employer can require you to wash hands, maybe even can require you to wear masks, maybe they can even hire security guards, whether or not they’re required to do so, all those things you leave at the end of the day when you’re the employee. But a vaccination is something the employee carries with them. It sort of becomes permanent as to their being and extends well beyond the workplace. And this was another argument that they made that it was outside the scope of this statute. 


And this explains the difference in the Medicaid case. Also, they used a different statute. There were four conservative dissenters in that case, but it was a different statute. It was the Medicaid statutes, which I actually pulled up the exact language here. There are some statutes that authorize the Center for Medicaid Services to promulgate rules necessary to ensure the health and safety of individuals who are furnished services in the institution. And so, yeah, that’s very different. And by the way, even if it was OSHA, I think OSHA maybe could have done it because Medicaid workers, it’s probably – if you interact with people susceptible to this virus, that sounds more occupational. Right? It wasn’t OSHA. It was this other statute. So that’s at least a plausible ground to distinguish the two cases.


Luke Wake:  Yeah. And I think folks who — I had a number radio interviews after the decision came down. And folks were kind of hung up on the fact that these cases came out differently because, on the one hand, you had a court striking down — or not striking down, but saying challenges are likely to prevail under and opposing the vaccine mandate from OSHA. And on the other hand, you had the different agency. And as you point out, you were dealing with different statutes with different language. In the one case with the HHS and CMS regulation, the language was very — it was difficult to argue that it said that it meant anything other than that they could do whatever they wanted to do because it said they can impose necessary conditions. And that did seem out of space to impose — give very open-ended discretion, maybe such open-end discretion—we can talk more about it—but maybe such open-ended discretion that there’s a nondelegation issue there. 


But on the OSHA thing, I think conventional wisdom for a lot of folks when the OSHA mandate came out was, “Well, people are getting sick in the workplace, so why can’t OSHA do this because this is an agency charged with workplace safety?” And, yet, there was a sense that OSHA — if a federal agency of any sort was to impose a vaccine mandate, on some level, it was maybe surprising that it was coming from OSHA as opposed to, say, CDC or something like that. I’m wondering, though, Ilan, I presume you follow the Alabama Association of Realtors case decided last summer.


Ilan Wurman: Eviction moratorium . . .


Luke Wake:  The eviction moratorium case, yeah.


Ilan Wurman:  Sure. Yeah.


Luke Wake:  And there was similar to the HHS statutory provision that gave very open-ended authority to CDC to do anything that the CDC director deemed necessary to control contagious disease. And we had litigation against that, challenging it, in part, on nondelegation grounds because if that really was the case, I mean, the entire universe — they could do anything the state governors had done. They could really do anything. And so, I can’t help but think had that litigation played out differently, had the courts actually accepted the notion that CDC could impose — could actually do anything that they deemed necessary, including the eviction moratorium, the alternative universe might have been one where CDC had imposed a vaccination mandate as opposed to OSHA. We would never have this. I don’t know if you have any thoughts on that. 


But there’s a corollary between the two decisions, though, in that the Alabama Association of Realtors case, in rejecting CDC’s interpretation, really stressed this major questions doctrine or the clear statement rule. And we had the Court again really latching onto that as a justification for rejecting OSHA’s expansive interpretation. Can you explain what the Court was talking about in those cases? What is this doctrine?


Ilan Wurman:  Yeah, sure. So just backing up for a second, there’s this separation of powers principle called the nondelegation doctrine. And there are some scholars contest it, but it’s really kind of separation of powers 101. It’s the idea that the legislature makes the law, the executive executes the law, courts view cases under the law, and the legislature, therefore, can’t give up its legislative power. This is what’s called the nondelegation doctrine. 


Now, one way to enforce the nondelegation doctrine is to just strike down overly broad delegations of authority to agencies. Right? So if a statute said, “OSHA shall regulate in the public interest,” you know, that’s a candidate to say, “Okay, maybe that’s too broad. You’re effectively transferring legislative power to OSHA.” Now, OSHA’s statute is actually much narrower. Right? And so, it wasn’t a great candidate to openly say something violates the nondelegation doctrine. But there are other ways to enforce nondelegation values. One is the major questions doctrine, which is a clear statement rule. But there’s another way, which is nondelegation — using nondelegation as a canon of avoidance. And these are two different things, both of which featured in Gorsuch’s concurrence, so I think it’s important to disentangle them. 


Justice Gorsuch, at what part of the opinion—actually, I think in the part that he cited me — and I really appreciate the cite. Though I’m not sure I would have added this constitutional avoidance point. He said if the statute did authorize the agency to act in this manner, that would constitute such a sweeping delegation of authority, which might violate the nondelegation doctrine. And therefore, we should avoid the interpretation of the statute that would lead to that result. This is constitutional avoidance. We have doubts as to whether X interpretation of the statute might lead to a constitutional violation, so we’ll interpret it as Y instead of X, assuming Y is a plausible interpretation of the statute. This was nothing that the majority signed on to. This was just in Justice Gorsuch’s opinion. 


But all of them did sign onto this major questions doctrine as a clear statement rule. A clear statement rule is different. Right? Again, constitutional avoidance—we doubt whether it’s constitutional for Congress to do X. Therefore, we’re going to assume they did Y. A clear statement rule is different. A clear statement rule says, “We’re going to assume that Congress can do X. We’re not saying Congress can’t do this, but what we’re saying is that there are these separation of powers values at stake such that we’re going to expect a clear statement from Congress if it, in fact, had intended to do this thing.” So this is sort of nondelegation as a clear statement rule instead of as a canon of avoidance. In other words, what they basically said is, “This question, this issue, is so major, is so important, is so politically and economically significant, that if Congress had intended to give OSHA the power to do this, we would expect it to have done so explicitly.” This is the major questions doctrine. 


It’s actually a kind of intuitive canon of statutory interpretation, sometimes called the elephants and mousehole canon. Right? Congress doesn’t delegate elephants in mouseholes. It doesn’t hide elephants in mouseholes. It doesn’t delegate broad, important authority through cryptic language. So for example, this comes from a case called MCI where the statute allowed the agency to modify requirements. And what did the agency do? Well, it eliminated the central requirement of the statute. It’s like, “Well, you don’t delegate such massive authority to undermine the central part of the statute under so cryptic of phrases to modify requirements, right?” And so, it’s actually quite an intuitive canon of interpretation, which, in this case, has these nondelegation overtones, these nondelegation values. 


So they deployed that. They stacked the deck, and they said — and so, to be clear — I know I’m talking a lot, and I’ll stop here — they didn’t have to deploy this. They could have just stopped where I stopped earlier. It’s not an occupational hazard. But they went further. They said, “We want a clear statement that Congress intended to delegate this kind of authority, and the occupational health and safety authority is not such a clear statement.” So it sort of stacks the deck against the agency claiming power. But it’s not necessary to the decision. You could decide the case by simply saying this is not an occupational health risk. But instead, what they said is, “We’re going to demand a clear statement.” And certainly, a delegation of authority over occupational health risk is not such a clear statement. And so, that’s how the decision was decided.


Luke Wake:  Well, if you say they didn’t need to decide it, I — in some ways, didn’t it make it easier for them to decide it, though? Because to come out — the clear statement rule, to employ that rule, you don’t necessarily need ambiguity. They didn’t necessarily need to say, “Well, this could be construed either way, and we’re picking what we think is the better construction.” All they need to say is, “Well, this is a really important, sensitive subject matter, and therefore, we’re going to just emphasize that the duty is on Congress to decide this sort of thing if it’s going to be decided at all.”


Ilan Wurman:  I suppose. I suppose, but you really don’t need the major questions doctrine unless there’s ambiguity. Right? I mean, a classic example — does the Administrative Procedure Act apply to the president? It certainly sounds like it does because the APA defines an agency as any authority of the government of the United States, which the president is an authority of the government of the United States. But it excludes Congress and the courts but doesn’t exclude the president. Well, the Supreme Court said, “Well, because there’s separation-of-powers concerns, we’re going to assume it doesn’t apply to the president, absent a clear statement from Congress.” You wouldn’t have needed to do that if there wasn’t that sort of ambiguity. Right? And so, I guess that’s my only point. 


You can just say, “Look, it’s not an occupational standard because it’s a general health risk, and then it ends.” And I think that would have actually been a cleaner way to decide the case in some ways. Because what’s a major question? What’s politically and economically significant, which I see by your facial expressions you’re going to ask me that next. And then it’s kind of who knows. Here, it’s just, “Look, it’s occupational. This isn’t occupational. And you may disagree with that reasoning, but you don’t need the major questions doctrine to get there because what’s major is kind of in the eye of the beholder.” I do think there are ways to kind of figure out what’s major or not major, but that’s really –. 


Luke Wake:  Well, I mean, that’s going to be — if the Court is going to be increasingly invoking this doctrine as they approach major regulatory questions, it’s probably going to be incumbent upon us as litigators or whoever to give serious thought to what is major. And maybe the Court will shed further light on that. But I want to back up because I’m especially interested in the nondelegation doctrine. If we had to reinvigorate a nondelegation doctrine, I think that would go a long way very quickly to reign in the administrative state. 


But I’ve read, for example, Cass Sunstein — I’m sure other scholars have argued that the clear statement rule, major questions doctrine, have sort of developed, almost as an escape valve, sort of a back way of addressing the fact that the Court has taken a very anemic approach to nondelegation. Do you agree with that? Do you think it can serve as a substitute for the nondelegation doctrine? Or ultimately, if we want to reign in the administrative state — and I’m interested in Karen’s views on this as well. I mean, ultimately, do we need to get a decision on just actually holding something as a violation of nondelegation or very clearly taking this serious approach to nondelegation in the canon of avoidance analysis. What are your thoughts as to the best way to reinvigorate separation of powers in general? Is this an adequate substitute?


Ilan Wurman:  I’ll just say quickly, I actually think the major questions doctrine is less an adequate substitute than the constitutional avoidance doctrine. I actually have problems with the constitutional avoidance doctrine because it basically lets courts make things up. Right? I mean, a court can say, “Well, we’re not deciding that this would violate the Constitution, but we have doubts about it, so we’re going to rewrite Congress’s statute.” So there are problems with that, but it would be a better way to enforce the nondelegation doctrine. 


And I think a good example of that is Gundy v. United States, which basically gave the Attorney General blanket authority to decide whether these sex offender registration requirements would apply retroactively to pre-enactment offenders. And what the Supreme Court basically said is it was sort of using nondelegation as a canon of avoidance. There was this possibility that that would violate the nondelegation doctrine. So they more narrowly construed the authority than otherwise the statute might have suggested by requiring a comprehensive scheme which sort of compels the Attorney General to include the pre-enactment offenders. Which, if that’s true, it basically gets rid of all this fraud delegation to the Attorney General. Right? 


So they narrowed the statute, as a matter of statutory interpretation, to avoid a potential constitutional problem. Now, they didn’t say they were doing that. They just simply interpreted it narrowly in a way that I don’t think was a plausible best reading of the statute. So that’s clearly what they were doing, and I think that’s clearly in service of nondelegation values. But of course, it has the disadvantage of rewriting Congress’s statute and not necessarily being faithful to what Congress actually wanted to have happened.


Luke Wake:  Right. Well, and it does seem like there’s a lot of statutes that are just very nebulous and open-ended in their language and are susceptible to either elastic interpretations or, I suppose alternatively, when the courts find it useful to sort of — “Well, this could mean whatever you want, so we’re going to narrow the construction.” But I’m interested in Karen’s views. I mean, what does this decision really auger for the future?


Karen Harned:  Right. Well, I thought it was interesting, this conversation that we’ve been having, particularly on nondelegation and major questions doctrine. I personally think that major questions doctrine does help get us further down the road of reinvigorating nondelegation. I think more and more what you’re seeing Congress do is avoid—avoid making — addressing the major questions. And as a result, the agencies feel like they are empowered to gap fill. And I think the more we can have this — although it’s not as satisfying as a sweeping decision—agencies, here are your parameters moving forward—I think it’s more likely that the Supreme Court — the chipping away. And the more we can show this is a major question and why — that we can point to in and case law will start [inaudible 34:36] the ability for agencies to go further than they otherwise would in taking power that Congress has not given to them or the people definitely never considered Congress giving them the power. 


I mean, that’s just my thought. As much as I’d love a sweeping decision on that, I just think — I’ve always thought this Court’s going to be more likely to just keep on saying, “No, that doesn’t meet the task. That’s too much power given the agency. Congress didn’t specifically delegate.” And through that, we’re going to have the body of case law that will essentially encompass the nondelegation doctrine.


Luke Wake:  And I thought it was interesting there was, I believe, in the Gorsuch concurrence if I’m recalling correctly — there was a line where – I mean, the nondelegation doctrine goes back — it was developed — I believe Professor Wurman wrote an excellent article talking about how this concept was — it’s nothing newly invented about it. From the beginning of the republic, we were applying that sort of doctrine. And you had Chief Justice Marshall in the decision way back in 1805 or something like that—maybe I’m getting the date on this wrong—but he decided that — or 1825. He was the one who first articulated, I think, the nondelegation doctrine as we’ve come to understand it and the implication there being — with the actual significant issues. You really have to have the decisions coming from Congress. So there is a certain congruity between the way the Court has talked about major questions. But I mean, is there a way that the Court could actually employ the major questions doctrine ultimately to read it in concurrence with that sort of original understanding of the nondelegation doctrine?


Ilan Wurman:  I would say yes, but they have to be aware that that’s what they’re doing because I don’t think this political and economic significance test that they use is indicative of what the nondelegation doctrine was. It’s similar. I mean, major questions is similar to what I’ve described as the importance subjects test. This comes from Chief Justice Marshall’s 1825 opinion to which you referred, Wayman against Southard, in which he said, “It won’t be denied that Congress can delegate to another department exclusively and strictly legislative power or the power that’s strictly and exclusively legislative. But surely, Congress can delegate to other departments power it could also exercise itself. And what is the line between these two powers?” he said. Well, of course, in classic Marshallian fashion, he didn’t really answer. He said, “Well, Congress must decide the important subjects”—that’s what he said—“But it can leave to the other departments, matters of detail, filling up the details of a general legislative provision.” Well, what is an important subject? 


I think using originalist and formalist sources, we can have multiple factors to look at. Surely, a regulation that affects private conduct is much more important than a regulation that affects official conduct. Right? George Washington promulgated a regulation, Henry Knox, a regulation in 1789 about how they would be assuming the payments to the invalid veterans of the Revolutionary War, pursuant to one of Congress’s statutes. And the regulation said, “Show up on these two days. We’re going to make two equal installments. Here are the proofs that you need.” This is basically governing official conduct—how this is going to be dispersed, its instruction to the officers, and so on. And that’s very different than a regulation that tells someone, as a private actor, you can or can’t do X. 


So private rights versus official conduct, private rights versus public rights, like veterans’ benefits, public land grants, things like that historically could be delegated much more broadly. The range of activity that it allows — think of the new deal statutes that were struck down, the National Industrial Recovery Act, which was like a roving commission to go through every industry, pick problems, and come up with codes of fair competition for every industry. This bothered all the justices on the Court, including Justice Cardozo, who dissented in the other nondelegation case, Panama Refining. And he said, “Look, yes, it’s kind of unlimited discretion, but it’s a narrow issue. Do you or do you not intraduct the interstate sale of hot oil?” Right? Oil in excess of state supply. And so, that was a narrow issue. So the scope of the delegation, the nature of the delegation, the breadth of the discretion, all of these things might go into what is an important subject. 


Very different than simply being politically controversial and economically controversial. Let me give you an example, and then I’ll stop. I promise, okay. The Bank of the United States — the question was, is this a great substantive, important power that you would expect the constitutional convention to have explicitly enumerated if it had intended to give Congress this power? Or was it sufficiently unimportant? Was it sufficiently non-substantive, sufficiently minor that it could be left to implication in the Necessary and Proper Clause? And eventually, the country decided it can be left to implication. It wasn’t a great important power like levying taxes, like raising troops, like declaring war. Okay? But it was still hugely economically significant and hugely politically controversial. 


So, just because something is politically and economically controversial doesn’t mean Congress hasn’t delegated it, doesn’t mean Congress can’t delegate it. I think if it’s politically and economically controversial, the courts should look at it closely for potential nondelegation violation. But it’s just not clear to me that test makes sense for nondelegation.


Luke Wake:  I understand that. Yeah. Those are good points. Well, two questions for each of you to wrap up because I know we’ve gone on for a while here, but it’s been a very interesting conversation. But, Karen, I’m interested in your thoughts on this because you represent small businesses, and they have to deal with OSHA every day, even setting aside the vaccine mandate that doesn’t look like it’s going to survive here. But under their general authority, as we’ve sort of alluded to already, they have tremendous open-ended power to decide what is an occupational health —I mean, the Supreme Court made one thing clear. They can’t regulate in general public health and call that occupational. But still, that seems like the universe of what OSHA can do and can’t do under their authority — they can do anything deemed necessary or appropriate. I mean, do you think that that raises the same sort of issues that we’ve talked about here about major questions, clear statement, nondelegation. To what extent do you think that their authority is vulnerable in other ways?


Karen Harned:  I do think their authority is vulnerable. And I know of at least one case that is exploring this issue that’s coming up through the courts, and I’m anxious to see how it resolves. I do think that — I mean, I think that’s why they thought they could get away with this. And quite frankly, people that I know that practice OSHA law thought they had this authority going in. And I think that as we’re looking at a Court that I think, again, is going to push back on these broad delegations of power, I think that OSHA needs to think through — or I think they are vulnerable. And I think it would be best if that statute was reworked to be more clear because really, the dissent was relying on the fire hazard to say they did have that authority. I do think their — yes, I basically agree that their authority is so broad right now, particularly under the General Duty Clause, which allows them to basically come in and cite anything as far as I can tell. It needs to be restricted. And hopefully, either the courts or Congress will do that.


Luke Wake:  Well, I’m happy to take one of those cases on if we find someone. But I’m interested in, Wurman, your thoughts on that because that is a — it’s an interesting issue. The DC Circuit years ago in the early ‘80s said, “Well, we’re not immediately seeing an intelligible principle here. That’s the standard for nondelegation at the federal level. DOL, why don’t you go back to the drawing board and come back and tell us what intelligible principles govern you?” So they basically — the agency came back, and said, “Well, these are the intelligible principle we’re adopting for ourselves.” And that’s the exact rationale that the Supreme Court rejected later in the American Trucking Associations. The intelligible principle has to come from Congress. It can’t come from the agency. But I’m interested in your view, whether this is a viable path, continuing to focus on OSHA, if we’re interested in actually putting teeth in the nondelegation doctrine and bringing in the administrative state. Any thoughts on that?


Ilan Wurman:  Yeah. I mean, I don’t actually know. Maybe yes, maybe no. I mean, the benzene case was OSHA, I think, and that’s where they — it was also this nondelegation as a canon of avoidance where if OSHA had authority to regulate benzene up to whatever parts per million it wanted with absolutely no guidance from Congress, that would be such a sweeping delegation of authority. So OSHA has obviously now twice sort of been ripe for these kinds of discussions. But in all things considered, OSHA actually seems like a sensibly restricted statute, focusing on occupational health and safety standards. You know, maybe the better argument would be if it expanded so much to tranche on the normal police powers of the states to regulate health and safety, that would be like a commerce violation. But there are other statutes to focus on, right? What’s regulating in the public interest or in the interest of investors or of shareholders? There are lots of other statutes that have much broader standards in them that I would think are ripe for delegation challenges.


Luke Wake:  And I appreciate that, and I know, Karen, you’ve got to wrap up here in a second. But, Ilan, I’m sorry. I lied. I have one final question for you because I’m really interested. You brought a case against Governor Ducey there in Arizona on behalf of small business owners that were affected. And I’m litigating a similar case against Governor Newsom in California. And the statute in both instances under which the governors were imposing their emergency orders said that the governor has “all police powers of the state.” I find that as remarkably over — if that’s not a violation of the nondelegation doctrine, I don’t know what is. 


But the interesting thing that I’ve noticed in watching COVID litigation across the country is you have a lot of statutes where there was, I think, room to argue about whether or not—especially in some of the statutes where the governors’ powers were enumerated—room to argue about whether or not the governor was actually acting within the scope of his authority. But the courts were very deferential in just expansively interpreting emergency management acts to allow state governors to do what they wanted and, with the exception of Michigan Supreme Court—no significant restraints on them as far as I can tell. I’m curious to what extent do you see the decisions that we talked about sort of today as providing some sort of a road map that may give a model for states to approach similar issues. Do you see that happening, or are the states just going to continue to do what the states have done?


Ilan Wurman:  By the way, do you know why both states had a statute that delegates all police power to the governor in the event of an emergency, both Arizona and California?


Luke Wake:  I don’t. I’ve noticed it’s more common in Western states. But what is the reason?


Ilan Wurman:  We stole it from California. 


Luke Wake:  Okay.


Ilan Wurman:  So another export — another California export, to the state of Arizona that we could have lived without. So that’s where we got that statute from. And what I would say is I actually think it should go the other way around. I would hope that the states can experiment and then give guidance to the federal courts. Because if the federal courts start experimenting with these things, they invalidate national laws that had a national reach. And if the Court messes it up, just like if Congress messes something up, then it messes it up for everybody. Whereas, what is an important subject that only the legislature can enact? Why, I’d rather have 50 states experiment with that question in state courts and state legislatures and go from there rather than have the federal government start on this experiment sort of on its own.


Luke Wake:  Well, that’s interesting. And there’s a lot we could talk about further there. It seems like this nondelegation doctrine, in some ways, is a lot more robustly developed at the state level across the country. So maybe there’s opportunities for the Supreme Court to look at what’s happened in the states as well. But we’ve covered a lot of ground. I truly appreciate the great conversation. Karen, it’s always great talking with you. And, Ilan, same to you. I appreciate it, and thank you so much.


Ilan Wurman:  Thank you.


Karen Harned:  Thank you.


Jack Derwin:  I would echo Luke and thank you all to all our speakers for joining us for this timely and important discussion. And thank you to our audience for tuning into this episode of RTP’s explainer podcast. You can subscribe on any major podcast platform and check out our website at regproject.org or our social media accounts @fedsocrtp to learn more. Thank you.




Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.




This has been a FedSoc audio production.

Karen Harned

Executive Director

National Federation of Independent Business Small Business Legal Center

Ilan Wurman

Associate Professor of Law

Sandra Day O'Connor College of Law, Arizona State University

Luke A. Wake


Pacific Legal Foundation

Regulatory Process
State & Local

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s). To join the debate, please email us at rtp@regproject.org.