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Reviews |  The Supreme Court just made an incredible power grab

Here is the key passage with the court’s unsigned opinion: “While Covid-19 is a hazard that occurs in many workplaces, it is not a professional danger in most. Covid-19 can and does spread at home, in schools, at sporting events and anywhere else people gather. Since the law gives the Occupational Safety and Health Administration the power to enact standards “reasonably necessary or appropriate to provide safe or healthy services.” usehe reasoned, and Covid-19 is not just spreading in the workplace, OSHA acted outside of its realm of authority. The vaccine or test mandate “makes no distinction based on industry or risk of exposure to Covid-19”, and therefore cannot be enforced. “[M]Most lifeguards and linemen are subject to the same regulations as doctors and meatpackers,” for example.

The logical flaw in the majority’s reasoning is that this line drawing is not required by the current law of 1970 (the Occupational Safety and Health Act) which established OSHA. In 1979, the Court recognized in Industrial Union Department c. American Petroleum Institute that OSHA has “broad authority…to promulgate various types of standards”. Justice Stephen Breyer, in his dissenting opinion, explained: “The standard goes to the heart of the agency’s mission to ‘protect employees’ from ‘grave danger’ that comes from ‘new hazards’ or ‘exposure to harmful agents’, as stated in the relevant part of the OSH Act.

What the majority is really saying, then, is that they don’t like how much power Congress gave it to OSHA in the first place. Whether Congress can delegate its legislative powers to executive branch agencies has been debated for decades. But since the 1930s, the court has essentially authorized Congress to give agencies regulatory power under the “necessary and proper” clause of Article I, in part on the theory that courts have not the type of expertise available to the agencies. Moreover, even if they are not elected, agency employees answer to someone who is accountable to the voters: the president.

This is called the delegation of legislative power. Instead of keeping its legislative power to itself, Congress gives the executive the power to fill in the inevitable gaps it leaves in legislation. When executive branch agencies respond, the resulting laws are often referred to as “regulations”. But they operate with virtually the same force of law as an act of Congress itself. Legal criticism of the practice of devolving legislative power to agencies has not aroused interest in the Supreme Court for nearly a century. Only a tiny handful of New Deal-era court rulings have overturned congressional decisions to delegate legislative power under the so-called non-delegation doctrine.

The court’s majority opinion signals that this Supreme Court is about to strike down an undisclosed segment of federal regulations that do not follow the express and detailed authorization of Congress. And even more troubling, the court’s conservatives have apparently determined that Congress can only do so if the subject matter of the law involves what the court considers a “major issue,” a nebulous, undefined term that has no meaning. textual support in the Constitution. Because our polarized Congress is shockingly dysfunctional when it comes to substantive policy, it doesn’t bode well for the legislative needs of the country.

So there is an imminent threat from the Supreme Court to the viability of federal regulations as a daily bread and butter to pass laws that cover virtually every aspect of American life, workplace safety and the protection of the environment. environment to financial regulation and national child protection. And these government actors are not elected or likely to lose their jobs at the polls. If a new threat to human health arises and affects millions of workers, then Congress would have done better to put the specific threat into legislation allowing an agency to deal with it – or pull itself together and enact a genuine emergency legislation under Article I. Of course, the horrors and unknowns of Covid-19 belie the feasibility of this option. The court essentially says, “Unless states step in to deal with the next epic pandemic, you guys are on your own.”

judge neil Gorsuch’s concurring opinion lays out the Conservatives’ theory well, even linking it expressly to the doctrine of non-delegation. When the federal government acts, he explained, “[i]t must … act in accordance with the separation of powers of the Constitution. And with regard to this obligation, this Court has established at least one firm rule. “We expect Congress to speak clearly ‘if it wants to assign an executive agency decisions of ‘great economic and political importance.’ an era of conservative-leaning modern jurists dominating the court. Gorsuch notes that “[w]We sometimes call this the major issues doctrine.

To be clear, the so-called major issues doctrine was developed by the Supreme Court. It is not in the Constitution. But Gorsuch added that “the major issues doctrine is closely related to what is sometimes called the non-delegation doctrine.” A wolf dressed as a sheep.

Since 1984, the prevailing doctrine for the review of agency regulations was not the major issues doctrine. Instead, it is stated in a landmark case called Chevron, USA, Inc. v Natural Resources Defense Council, Inc. Under that decision, the Supreme Court resisted the power to rewrite regulations by court order, holding instead that as long as Congress gives the agency authority to regulate by law, the agency can reasonably exercise its discretion. to fill the gaps in the legislation by issuing rules. . If the agency does so, the courts should defer to the agency’s political judgment, on the theory that they have more relevant substantive expertise than federal judges. For example, the public is arguably better served by Nuclear Regulatory Commission experts crafting rules on reactor safety and security than by unelected black-robed generalists.

The Conservatives’ major issues doctrine puts that power firmly in the judiciary, ultimately handing it over to Supreme Court justices who can now decide which laws they like and dislike with virtually no scrutiny or constraint. This amounts to a constitutional seizure of power. But not by agencies. It is by the Supreme Court itself.


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