Gorsuch v. the Administrative State Is Really Heating Up
(Bloomberg Opinion) -- In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government.
The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.
The fight over reining in the administrative state is different from the headline-grabbing dispute over Covid-19 vaccines. With respect to vaccines, the court issued two decisions, one allowing the government to require most health-care workers to get shots, and another rejecting a similar requirement for some 80 million employees of big companies.
In those cases, the court split three ways. The three liberals would have allowed both mandates to take effect. Four conservatives would have blocked both mandates. And the court’s two more centrist conservatives, Chief Justice John Roberts and Justice Brett Kavanaugh, split the difference and carried the day: They upheld the health-care workers’ mandate while striking down the OSHA-focused one for companies with more than 100 employees.
In the 6-3 OSHA decision, Gorsuch wrote a separate concurrence with a separate purpose. He didn’t just reject the claim by the administration of President Joe Biden that a workplace mandate could be imposed under OSHA’s power to regulate “occupational” safety, as the majority did. He said something fundamental about the Constitution and what it allows Congress to do when allocating power to any administrative agency.
According to Gorsuch, the right question to ask, in considering whether an agency has power to do something, is not merely whether Congress has passed a statute that authorizes it. The right question is whether the Constitution allows Congress to delegate broad power at all.
The traditional Supreme Court answer to that question has two parts. First, the court said in 1928 that when Congress delegates power to an agency, it must articulate an “intelligible principle” to limit the agency’s actions. Second, in a 1935 decision striking down a key part of President Franklin Roosevelt’s New Deal, the court added, “Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested.”
For more than three-quarters of a century, the justices have interpreted their own words generously, to maximize the powers that Congress is allowed to give to the agencies that regulate the air we breathe, the water we drink and the safety of our workplaces, among many other functions. The court has treated almost any words used by Congress as satisfying the intelligible-principle requirement. And the justices have allowed Congress to delegate enormous lawmaking powers without saying that the delegation counted as an impermissible transfer of essential legislative functions.
Gorsuch, Alito and Thomas want to give new vitality and force to these two requirements, to scale back radically what Congress is constitutionally permitted to allow agencies to do. The key line of the Gorsuch opinion reads: “If the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”
The statute the administration cited to justify the vaccine mandate said that OSHA has the power to issue emergency regulations if the agency determines both that “employees are exposed to great danger” from “toxic or physically harmful substances” and that the regulations are “necessary” to protect the employees.
Under ordinary application of the Supreme Court’s precedents, this delegation is business as usual. Hundreds and probably thousands of statutes delegate power to agencies in similar terms.
Gorsuch was saying that, if the statute really intended to let OSHA interpret the Covid virus as a “physically harmful substance” and the vaccine mandate as “necessary,” then the law wouldn’t count as providing an intelligible principle. Rather, it would be an unconstitutional delegation of Congress’s essential legislative functions. Quoting the 1935 New Deal ruling, he wrote that such authority would turn OSHA into “a roving commission to inquire into evils and upon discovery correct them.”
Gorsuch did not go so far as to say that Congress does not have the authority to establish OSHA at all. That would be the most extreme version of the attack on the administrative state. Gorsuch does not seem inclined to make it, at least not yet.
Yet Gorsuch is trying to constitutionalize ordinary administrative law decisions by transforming quotidian questions about whether Congress meant to give a certain power to a given agency into existential questions about whether Congress could do so even if it chooses.
The effect of the transformation, if it got five votes, would be to vastly increase the power of the courts to overturn agency regulations. That, in turn, would put the agencies in fear of their own continued existence each time they regulated aggressively.
It’s noteworthy that Justice Amy Coney Barrett, who joined the conservatives who wanted to reject the health-care workers’ mandate, didn’t join the Gorsuch concurrence in the OSHA case. That omission means that, for the moment, Gorsuch’s team has three members, not four. The best explanation is that Barrett, who clerked for Justice Antonin Scalia, is committed to Scalia’s theory of administrative law, which did not contemplate Gorsuch’s extreme views.
But Gorsuch wants to be the intellectual leader of the conservative wing of the court and is seeking to wear Scalia’s mantle. He cited a 1980 essay by Scalia in his concurrence, one published in the journal of the American Enterprise Institute, a conservative think tank. Gorsuch’s fight against the administrative state is just getting started.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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