By David K. Shipler
When
the Supreme Court blocked
the Biden administration’s vaccine-or-test mandate for large employers, its
three most conservative justices also issued a little-noticed concurring
opinion with ominous implications. In it, they gave voice to an expansive
interpretation of the “non-delegation doctrine,” which holds that Congress
cannot delegate its legislative powers to the executive branch. When agencies
issue broad regulations, the argument goes, they are effectively legislating,
thereby violating the Constitution’s separation of powers.
How far
the Court will take this reasoning is an open question. But its most outspoken champion,
Justice Neil Gorsuch, who wrote the concurring opinion, was joined by Justices
Clarence Thomas and Samuel Alito in an alarming pronouncement: that even if the
law allowed the Occupational Safety and Health Administration (OSHA), to issue
the mandate—which existing law did not, the 6-3 majority ruled—such a statute
should be overturned.
“On the
one hand, OSHA claims the power to issue a nationwide mandate on a major
question but cannot trace its authority to do so to any clear congressional
mandate,” Gorsuch, Thomas, and Alito declared. “On the other hand, 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.”
With two more votes on the Court, that position could hobble the federal government’s ability to apply health, safety, and environmental laws across the board. Indeed, a case involving the Environmental Protection Agency, to be argued next month, might provide an opportunity for a ruling of considerable scope.
