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COVID-19, Major Questions, and Pouring New Wine from Old Bottles

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Friday’s oral argument in NFIB v. Department of Labor, the legal challenge to the Occupational Safety and Health Administration’s Emergency Temporary Standard mandating that large employers require their employees to get vaccinated or tested for COVID-19, highlighted some of the legal questions that arise when federal agencies use old statutory authority to address contemporary problems.

Congress delegates to agencies so that agencies can take action in the future, but the passage of time may nonetheless influence how we understand what authority was delegated, or raise concerns that agencies are acting in an unauthorized or ultra vires fashion. The repurposing of old statutory grants may even raise greater concerns about democratic accountability than the breadth of the delegation. (Chris Walker and I explored some of these questions in our Iowa Law Review article, “Delegation and Time”, with a focus on what Congress could do about it.)

This issue is somewhat inevitable. One reason Congress delegates broad authority to federal agencies in the first place is so that agency officials will be able to address new and unforeseen problems without having to engage the legislature at every turn. On the other hand, it is sometimes difficult to argue that Congress authorized specific sorts of actions if the nature of the problem or the specific regulatory measures adopted were not contemplated at the time. The more time passes without legislative action, the more such concerns may grow.

In the case of the OSHA vax-or-test ETS, it is clear that Congress sought to give OSHA the power to address “new hazards” and newly discovered workplace risks (including contagions that could be transmitted in the workplace). But that fact does not resolve all of the legal questions concerning the ETS, particularly since OSHA never sought to adopt a rule of this sort in the half-century since the OSH Act was enacted.

Consider this exchange between Chief Justice Roberts and Solicitor General Prelogar:

CHIEF JUSTICE ROBERTS: . . . you’re saying that Congress acted. Don’t — don’t complain that Congress hasn’t done anything and that — you know, that was 50 years ago that you’re saying Congress acted.

I don’t think you had COVID in mind. That was almost closer to the Spanish Flu than it is to today’s problem.

Now, I understand the idea that agencies are more expert than Congress. And I understand the idea that they can move more quickly than Congress. But this is something that the federal government has never done before, right, mandated vaccine coverage?

GENERAL PRELOGAR: It’s true that there has been no standard that looks exactly like this one. The federal government has encouraged vaccination as this standard does and other provisions like the blood borne pathogen standard. And masking and medical testing of employees are common features of OSHA standards.

CHIEF JUSTICE ROBERTS: Well, is — is — is it that important consideration that we should take into effect, for example, along with the fact that the police power to take such action is more commonly exercised by the states, and we’ve had many cases coming out of the states and municipalities that — that — that — that evidence that.

And also that it’s — yes, 50 years ago Congress passed a general provision, but I think it’s certainly hard to argue, and you’re doing a good job of it, that that gives free reign to the agencies to take — I guess this is invoking the major cases doctrine, that it gives free reign to the agencies to enact such broad regulation that is — was certainly unfamiliar to Congress in 1970.

Congress was well aware of the threat of infectious disease when it enacted the OSH Act, and OSHA has addressed disease-related risks in the workplace with other rules. Yet, OSHA never used its ETS authority in this way and, as the Chief Justice suggested, Congress has never taken action to suggest that OSHA could adopt a standard that extends beyond protecting workers while they are at work. The Chief raised similar concerns when he asked whether the OSHA ETS should be understood as a workplace safety rule, or as a “workaround” designed to evade limits on agency authority that preclude a national vaccine policy.

Implicit in the Chief Justice’s questions here is a concern that an old statute should not be read as the source of authority for a “major,” and largely unprecedented, assertion of agency authority, particularly where Congress has had the opportunity to confer such authority on the agency, and yet has failed to do so. In effect, the Chief expressed skepticism that agencies can pour new wine out of old bottles. Of course, this formulation raises the question of when an agency’s wine should be considered “new” or a meaningful departure from what an agency has done before.

In the way he framed his questions, the Chief seemed to be channeling Justice Kavanaugh’s “major rules” gloss on the major questions doctrine, which cautions courts against recognizing old statutes as a source of substantial-yet-previously-undiscovered regulatory authority. We saw the Court adopt a similar approach in rejecting the CDC’s eviction moratorium.

The underlying idea is that when Congress delegates power to agencies, it delegates particular sorts of power to address particular sorts of problems. What Congress cannot be said to have done, however, is to have delegated power that can be repurposed or used to expand agency authority, at least not without a very clear indication that Congress sought to do just that. Such elephants, the argument goes, are not hidden in mouseholes. They must be identified explicitly.  I made the case for this sort of approach in my forthcoming book chapter, “A ‘Step Zero” for Delegations.”

There are other ways to resolve the challenge to the OSHA ETS. For example, the Court could invalidate the OSHA ETS on more narrow and traditional administrative law grounds. The Court could also conclude that the rule is lawful, or that the government’s defense is sufficiently strong that no stay is warranted. Just because concerns about major questions arose at argument does not mean such concerns will drive the Court’s decision. Never fear, the Court will have ample opportunity to explore the contours of the major questions doctrine when it hears West Virginia v. EPA next month.

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