Major Questions and Juristocracy

David Driesen

Jan. 31, 2022

This op-ed was originally published in The Regulatory Review. Reprinted with permission.

The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance."

In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats.

Two recent decisions addressing emergency rules protecting workers from COVID-19 illustrate the new judicial role. Although the cases arose under statutes that contained very similar language authorizing health-protective rules, the Court allowed the executive branch to implement the statutory policy only in a rule regulating hospitals and not in a rule regulating the workplace at other large employers.

In the general workplace case, NFIB v. OSHA, the Court invoked the major questions doctrine to prevent the implementation of COVID-19 protection without mentioning it in the hospital case, Biden v. Missouri, in which the Court approved stricter protection from COVID-19. As I have noted elsewhere, the distinction between these cases can only be explained by a Court carrying out a Lochnerian reasonableness review with a strong conservative bias against change.

This essay, however, questions the fundamental idea that judges should decide major questions themselves, rather than according to the policy desires of the enacting Congress.

In OSHA, the Court explained that it expects "Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance." This statement indicates that the Court does not evaluate rules for conformity to the governing statute, but instead sees its role as seeking to discipline Congress. Congress, however, spoke clearly when it adopted the Occupational Safety and Health Act. That statute authorizes protecting workers from grave dangers in the workplace, and the OSHA Court never denied that COVID-19 poses a "grave danger" in the workplace.

The majority's statement insisting that Congress "speak clearly" is best understood to mean that the executive branch cannot implement policies enacted by Congress if the matter is very important and the Court can imagine a more specific formulation of law that would authorize the agency rule. Of course, it is always possible to imagine more specific language than one finds in governing law because statutes establish policies and principles intended to govern future cases and must reflect compromises among the people's representatives.

In OSHA, Justice Gorsuch's concurrence suggested that the nondelegation doctrine justifies the major question doctrine, and Justices Alito and Thomas agreed. Without a hint of irony, Justice Gorsuch defends a doctrine authorizing judicial fiats contravening policies enacted into law through the arduous process of bicameralism and presentment as ensuring "that the power to make the laws … remains … with the people's elected representatives." The major questions doctrine, however, interferes with enacting Congress's prerogatives by preventing the execution of its laws.

Nor does the doctrine protect current and future Congress's prerogatives. Current and future Congresses remains free to legislate specifically about COVID-19 if its members agree that an issue merits fresh legislation and can agree on what the legislation should say, regardless of how the Court treats executive actions.

Although legislators of all stripes may want Congress to resolve every major issue through frequent statutory revision, the framers designed the U.S. Constitution to create more stable law. By requiring bicameralism and presentment, they made statutes difficult to amend. For that reason, judicial resolution of major questions can defeat the rule of law precisely when it is most needed—when partisan division limits congressional capacity to update its laws and major crises divide the nation.

The desire of Congress as an institution to decide major questions does not suggest a consensus among legislators in a divided Congress about what should happen under existing law. Members of Congress strongly aligned with the values in existing law will tend to favor its faithful implementation. Members more concerned about countervailing values may welcome judicial intervention limiting the law's influence.

The Court's approach in OSHA makes it an advocate of the interests of the faction that opposes implementing the law to address new workplace threats such as COVID-19, instead of neutrally adjudicating the meaning of the law in light of the intentions of the Congress that reached a policy consensus—the enacting Congress.

Furthermore, neither an agency nor a court can cure a nondelegation problem by resolving a major question. The Court recognized that statutory construction cannot cure a nondelegation problem in Whitman v. American Trucking Association, holding that an agency cannot "cure" an "unlawful delegation of legislative authority … by adopting a limiting construction of a statute." The resolution of a statutory question, Justice Scalia explained, "would itself be an exercise of the forbidden legislative authority." It follows that judicial resolution of a major question cannot cure a nondelegation problem either.

Justices Kavanaugh, Roberts, and Coney Barrett may understand some of this, for none of them signed on to the nondelegation doctrine theory. Justice Kavanaugh had previously signaled support for the nondelegation doctrine as a basis for the major questions doctrine in a U.S. Court of Appeals for the D.C. Circuit dissent, so his absence from the OSHA concurrence is especially intriguing. But the agreement among the majority to overrule the executive branch's decision suggests they have not yet realized that they are betraying their announced commitments to democratic resolutions of policy issues.

Although the major questions doctrine arose as a highly problematic canon of statutory construction, overcoming the letter of the law to capture its "spirit," OSHA shows that it is becoming a tool for allowing federal judges to usurp the policy decisions of the elected branches of government. The doctrine has nothing to do with preserving self-government and everything to do with increasing the reach of the juristocracy.

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