OSHA Case Shows Fluidity Of Major Questions Doctrine

Abstract

In National Independent Business Federation v. OSHA, the Supreme Court stayed the implementation of OSHA’s vaccinate-or-test mandate, finding that OSHA was unlikely to succeed in showing that the mandate was within the scope of its statutory authority. In doing so, the Court relied in part on what is sometimes called the “major questions doctrine” – the idea that when Congress intends to delegate a decision of vast economic and political significance to an agency, it must do so in exceptionally clear terms.

In concurrence, Justice Gorsuch elaborated further on the major questions doctrine, calling it a “firm rule.” But the major questions doctrine is more aptly characterized as a vague principle or canon used in construing statutes and determining how much deference is owed to agencies in doing so. This article will briefly trace the origin and development of the doctrine, and then discuss some of the complexities involved in its recent application in the OSHA case, including its relation to the non-delegation doctrine.

Keywords: Vaccine Mandate, OSHA, COVID-19, Major Questions Doctrine, non-delegation