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

41 Pages Posted: 4 Apr 2022 Last revised: 17 Jun 2022

See all articles by Randolph J. May

Randolph J. May

The Free State Foundation

Andrew Magloughlin

The Free State Foundation

Date Written: March 27, 2022

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.

The unified theory of the separation of powers in Justice Gorsuch's NFIB concurrence and the absence of the appearance of Chevron deference in NFIB hint that a majority of the Court may be looking to clarify and reinvigorate the Constitution's structural safeguards that separation of powers embodies.

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

JEL Classification: K2, K10, K23

Suggested Citation

May, Randolph J. and Magloughlin, Andrew, NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show (March 27, 2022). South Carolina Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4067799 or http://dx.doi.org/10.2139/ssrn.4067799

Randolph J. May (Contact Author)

The Free State Foundation ( email )

P. O. Box 60680
Potomac, MD 20859
United States
301-299-3182 (Phone)
301-299-5007 (Fax)

HOME PAGE: http://www.freestatefoundation.org

Andrew Magloughlin

The Free State Foundation ( email )

P. O. Box 60680
Potomac, MD 20859
United States

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