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

37 Pages Posted: 14 Feb 2023 Last revised: 8 May 2023

See all articles by Randolph J. May

Randolph J. May

The Free State Foundation

Andrew Magloughlin

The Free State Foundation

Multiple version iconThere are 2 versions of this paper

Date Written: February 10, 2023

Abstract

National Federation of Independent Businesses v. Department of Labor 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, specifically, the protection of the legislative power vested in Congress, going forward.

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. In existing case law, the major questions doctrine has almost always been framed as a limit on Chevron deference rather than as a standalone canon of interpretation. And scholarly commentary on the subject generally concludes that the major questions doctrine is nondelegation by a different name, or a less extreme replacement.

Justice Gorsuch's unified theory is important because it clarifies the major questions doctrine's role in protecting the separation of powers, the most fundamental feature of the Founders' Constitution. His concurrence explains that the major questions doctrine will continue to police executive abuse of statutory authority by virtue of stretched interpretations that text cannot justify. Many commentators, including Justice Gorsuch himself in his dissent in Gundy v. United States, previously characterized the major questions doctrine as a replacement for nondelegation that polices Congress's implicit delegation of broad authority to the executive through ambiguities produced by statutory gaps. But the unified theory in NFIB rightly corrects the record – the major questions doctrine will continue to protect Congress's legislative power from executive abuse, in accord with both the doctrine's descriptive maxim that Congress "doesn't hide elephants in mouse holes.

Keywords: major questions doctrine, nondelegation doctrine, administrative agency authority, congressional authority, administrative law

JEL Classification: K20, K23

Suggested Citation

May, Randolph J. and Magloughlin, Andrew, NFIB v. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show (February 10, 2023). South Carolina Law Review, Vol. 74, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=4354143

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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