NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show

Abstract

National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration suggests that a revitalized, more coherent separation of powers doctrine may be emerging at the Supreme Court. This more coherent doctrinal approach appears to include both a more exacting application of the nondelegation doctrine, as it is presently understood, and a more assertive judicial role in reviewing agency interpretations of their own statutory authority. Two observations garnered from a close reading of NFIB provide insights regarding how the Court might treat key aspects of separation of powers going forward, specifically, the protection of the legislative power vested in Congress by Article I of the Constitution.

The first observation: Justice Neil Gorsuch's concurrence in NFIB provided a novel, unified theory of separation of powers doctrine unseen in prior Court opinions and literature. In a nutshell, Gorsuch explained that that the "nondelegation doctrine" protects the legislative power from intentional delegation by Congress while the "major questions doctrine" protects the legislative power from unintentional delegation by Congress, which may also be characterized as the executive branch usurping Congress's authority. This unified theory fuses the doctrines into two distinct sides of the same coin.

The second observation: The total absence of any references to Chevron deference in the Court's opinions in NFIB, as well as in the parties' briefings, possibly could signal Chevron's demise or at least the shrinking of its domain.

Keywords: separation of powers, nondelegation doctrine, major questions doctrine, Chevron deference, administrative state, legislative power

JEL Classification: K2, K10, K23