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Major questions from the Supreme Court could upend the administrative state

A carve-out of the court’s precedent on agency deference is now taking center stage as justices move to use it as a quasi-constitutional doctrine.

WASHINGTON (CN) — Using a made-up doctrine, a majority of the supermajority conservative Supreme Court blocked the enforcement of President Joe Biden’s vaccine-or-test mandate for large businesses, setting the stage for the further dismantling of the administrative state. 

For almost 40 years, the court has relied on its 1984 precedent of Chevron USA Inc. v. National Resources Defense Council Inc. to decide what authority government agencies have. Chevron says that unless Congress has said otherwise, the courts should defer to agencies if their interpretation of the law is not unreasonable. 

But Chevron has its limits. If an agency did something that broadly expanded its authority, a rare exception — the major questions doctrine — would apply, forcing them to get congressional authorization for that action. 

As some justices have expressed disdain for Chevron in recent years toying with overturning the ruling, the major questions doctrine has emerged in its place. 

“I think they're related,” Lisa Heinzerling, a professor at Georgetown Law, said in a phone call. “I think this is one of the indications of the court’s hostility to Chevron, and … I think the fact that this is happening, that the court is finding all sorts of ways not even to mention Chevron means that it can do a great deal of revision to its doctrine without overruling that case. They don't need to overrule that case to make agency deference almost a thing of the past.” 

What the court’s majority did in the OSHA case was say the agency — which is tasked with keeping workers safe and healthy while on the job — didn’t have the authority to mandate vaccines or testing against a deadly pandemic because Congress didn’t specifically say they could do that. The problem is Congress did give them the authority to regulate things like vaccines, tests and masks in the workplace, they just didn’t say it clear enough for the court’s majority. 

“Congress did speak to this issue, they just didn't speak clearly enough so the Supreme Court can actually hear them,” Heinzerling said. 

Because in the ’70s Congress didn’t put in writing that OSHA could protect its workers from a deadly pandemic that would come 50 years later, the agency loses it power to do so. 

This doctrine can be very powerful and wide-ranging because the justices don’t have to rule on constitutionality, they just have to say Congress hasn’t spoken to that specific issue. And as its name implies, it’ll be used to decide consequential actions by the government. 

“They're just disabling Congress from getting help responding to big problems,” Heinzerling said.

In a new article for the Journal of the American Medical Association, Lawrence Gostin, a professor at Georgetown Law, said the court’s ruling in the OSHA case will severely limit the flexibility of the government to respond to public health emergencies. 

“I think it is highly problematic,” Gostin said in an email. “If we took the major questions doctrine seriously, it would put at risk a great deal of health, safety, and environmental regulation. It would unravel the regulatory state.” 

There’s no statute that says agencies can’t use their authority to solve big problems. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor note this fact in their dissent in the OSHA case. 

“That is what the majority today does — impose a limit found no place in the governing statute,” the liberal justices wrote.

Regulation from the Environmental Protection Agency provides another example of how some of the court’s justices have used this provision for their benefit. In Massachusetts v. EPA — in which the court said carbon dioxide and greenhouse gases are air pollutants and can be regulated by the EPA — the late Justice Antonin Scalia said in his dissent that the court should have deferred to the agency. However, in Utility Air Regulation Group v. EPA, Scalia in the majority said the court shouldn’t let the EPA interpreted the Clean Air Act. 

The upshot is that this doctrine can be used to defer or not to defer depending on the justices' ideological preferences. 

The major questions doctrine becomes this kind of all-purpose rule that allows the justices to disapprove of agency regulation and since agencies are creatures of statute, every administrative case potentially contains a question for the court to answer. 

“If you're thinking about what question is important, and again it’s important in this way only if the agency answers wrong according to the court … That's incredibly subjective,” Heinzerling said. 

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