How the Supreme Court is using ‘major questions’ to deregulate big business

The Supreme Court’s new “major questions” doctrine in administrative law holds that, because the court will “presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies,’” it will not allow a federal agency to act on major issues unless there is “‘clear congressional authorization’ for the power it claims.”

With this remarkable legal innovation, the Supreme Court might as well have transformed Fox News into a quasi-government entity with the power to amend federal law.

This rule purports to be in the service of democracy, an aid to carrying out the decisions of the people’s elected representatives.

The Supreme Court’s enthusiastic deployment of this doctrine began in January 2022, when it blocked a workplace safety rule requiring that employees in large workplaces either be vaccinated for COVID or be tested weekly and wear masks at work.

The underlying statute’s language is unambiguous: The Occupational Safety and Health Administration must issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” when the standard is “necessary to protect employees from such danger.”

The opinion’s dissenters (Steven Breyer, Sonya Sotomayor and Elena Kagan) noted that “the majority does not contest that COVID-19 is a ‘new hazard’ and ‘physically harmful agent’; that it poses a ‘grave danger’ to employees; or that a testing and masking or vaccination policy is ‘necessary’ to prevent those harms.”

But the court decided that the rule was too “major” to be enacted without specific authorization. It was “a significant encroachment into the lives — and health — of a vast number of employees.”

Evidently the majority presumed that Congress did not intend to give the agency the power to impose such an “encroachment” as a requirement to vaccinate or be tested for the virus. But there’s no reason to think that the “encroachment” would have seemed burdensome in 1970, when the law was passed. People then remembered the terrors of measles and polio, and generally agreed that you would have to be crazy to expose yourself to those plagues.

But now, with the encouragement of the right-wing press, anti-vaccination ideology has roared back. And so the court has held that OSHA’s reach has somehow retrospectively shrunk.

Justice Neil Gorsuch, concurring, explained that OSHA had improperly imposed the rule “at a time when Congress and state legislatures were engaged in robust debates over vaccine mandates,” 50 years after the law had been enacted.

There’s no ambiguity about what Congress actually wanted. The statute says that its aim is to “assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience.”

Justice Kagan is right that the major questions doctrine is a “get-out-of-text-free card.” But Gorsuch thinks that this result is constitutionally required.

In another case involving the regulation of polluting power plants, the court observed that similar regulation “has been the subject of an earnest and profound debate across the country.” Gorsuch, again concurring, saw “a relatively easy case” for invalidation because “whether these plants should be allowed to operate is a question on which people today may disagree.”

When it invalidated student debt relief, the court again cited “earnest and profound debate.” Justice Amy Coney Barrett, concurring, stressed “the importance of context when a court interprets a delegation to an administrative agency.” But of course, debate today can’t tell you anything about the context when the law was enacted.

In an important recent article, University of Michigan Law Professors Daniel Deacon and Leah Litman observe that, in these cases, the court determines whether a policy is “major” enough to trigger the doctrine by considering, among other factors, whether the policy is politically controversial now. This means that unelected, nongovernmental actors get “to effectively amend otherwise broad regulatory statutes by generating controversy surrounding an agency policy.”

In other words, an agency can lose authority to do something Congress has told it to do if, decades later, Fox News makes enough fuss about it. Whether the fuss has a legal effect depends on the discretion of unelected judges — not just the Supreme Court, but any district judge who can be persuaded to block a regulation that he regards as “major.” Add to this the caveat that the high court will probably be more skeptical of Harris administration regulations than of Trump ones.

This unpredictable thwarting of government action is best understood as reflecting a minimal-state philosophy that appears nowhere in the Constitution.

Having written a critical history of libertarian thought, I am sometimes asked whether libertarianism still matters in the age of Trump. The answer is yes, because Trump’s judicial appointees evidently think they are promoting freedom when they exposes workers and their families to deadly diseases, heat up the planet and shut down debt relief.

Justice Kagan has observed that if broad delegations to agencies are not permissible, “then most of government is unconstitutional.” As I have said before: bad political philosophy can kill you.

Andrew Koppelman, the John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed.”