By Jonathon Beatty

In National Federation of Independent Business v. OSHA,[1] the Supreme Court reversed the Sixth Circuit Court of Appeals and stayed the Occupational Health and Safety Administration’s (“OSHA”) rule imposing a vaccine-or-test mandate on essentially every employer with at least 100 employees.[2]  The rule and subsequent stay affected some eighty-four million private-sector workers across the United States,[3] but the opinion has far-reaching implications for our entire constitutional order.  It highlighted a growing debate over the deference courts afford agencies when they ostensibly act pursuant to a congressional delegation of authority—namely the nondelegation and major questions doctrines.[4]  At the very least, a majority of the Court signaled a willingness to scale back Chevron deference,[5] while Justice Gorsuch, joined by Justices Thomas and Alito, appeared poised to strengthen a duo of related doctrines that could dramatically diminish the authority of administrative agencies moving forward.[6]  But what does all this mean?

Start with the text of the Constitution.  Article I, Section 1 grants “[a]ll legislative powers . . . in a Congress of the United States, which shall consist of a Senate and House of Representatives.”[7]  On its face, the Constitution is clear in its separation of powers: all legislation, or lawmaking, must originate in Congress.  As Justice Scalia put it, “This text permits no delegation of those powers . . . .”[8]  Since at least 1892, the Supreme Court has made this abundantly clear, “[t]hat Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”[9]  Hence, the nondelegation doctrine has developed from and is a product of the Constitution’s text.  Few, if any, rules, however, are absolute.  The nondelegation doctrine is no exception.[10]

The Constitution demands that the President faithfully execute the laws.[11]  In doing so, the executive necessarily must have some decision-making authority to administer laws.[12]  Even James Madison, who championed “the division of authority among the various branches of government,”[13] recognized that absolute separation “can never in practice be duly maintained.”[14]  Accordingly, the Court has long sought to strike the balance between maintaining a clear separation of powers and allowing Congress to delegate limited rulemaking authority to administrative agencies for practical purposes.[15]  Effective governance, the argument goes, relies on it.[16]  In delegating such authority, however, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform.”[17]  Otherwise, executive action may stray too far from legislative command and thus unconstitutionally blur the line between executive and legislative power.

The validity of an administrative rule, therefore, rests on essentially three questions: (1) whether Congress has the authority itself to do what the agency has done; (2) whether Congress may delegate that authority to an agency; and (3) whether Congress, in fact, delegated that authority.[18]  The first question is a threshold matter asking whether “the federal government properly invoke[d] a constitutionally enumerated source of authority to regulate in [the] area . . . .”[19]  If so, courts look to whether the attempted delegation of power provides an “intelligible principle” to direct the agency.[20]  Too broad a grant of authority without sufficient guidance would violate Article I, Section 1 by taking from Congress, the branch closest and most responsive to the democratic process, “important choices of social policy.”[21]  And finally, courts must determine whether Congress, in fact, made a constitutional grant of authority allowing the agency to do what it purports to have the power to do.[22]  Put differently, Congress may have the inherent constitutional authority and may be able to delegate that authority, but did it?[23]  This last question, on which OSHA’s mandate ultimately failed,[24] implicates Chevron deference and the major questions doctrine.

When a statute speaks clearly on an issue, a court’s assessment ceases: it “must give effect to the unambiguously expressed intent of Congress,” regardless of an agency’s interpretation or position.[25]  Where, however, the statute is vague and does not “address[] the precise question at issue,” the court need only decide whether the agency’s decision represents “a permissible construction of the statute.”[26]  In other words, when a statue is ambiguous, the agency’s interpretation of a statute allowing it to make rules need only be “reasonable.”[27]  The underlying justification for such great deference is basically twofold: (1) ambiguity amounts to “an implicit delegation” of power to an “agency to fill the statutory gaps” left by Congress;[28] and (2) administrative agencies that Congress has tasked with administering the law have “expertise,” especially relative to judges, that better positions them to make rules on the regulatory matter.[29]

This inclination to defer to an agency’s “reasonable” interpretation goes at least as far back as the 1940s,[30] for example, when Justice Murphy explained that courts may invalidate an agency’s rule “only if it lacks any rational and statutory foundation.”[31]  Just like the nondelegation doctrine, however, Chevron is not without exception.  An agency’s exercise of substantial authority, even where the enabling statute at issue is ambiguous, may appropriately give courts pause before deciding that Congress has made “such an implicit delegation.”[32]  This is especially true of “question[s] of deep ‘economic and political significance.’”[33]  And the major questions doctrine represents that pause, or “reason to hesitate,”[34] before essentially rubber-stamping agency action.[35]  The idea is that if Congress truly assigned an agency such considerable power, it would have done so unmistakably.

On this doctrine, the Court stayed OSHA’s mandate, finding that challengers of the rule were likely to succeed on the merits that OSHA “lacked authority to impose the mandate.”[36]  Pointing to the rule’s “significant encroachment into the lives—and health—of a vast number of employees,” the Court reasoned that such an intrusion would need a clear congressional delegation of authority that “plainly authorizes the . . . mandate.”[37]  It went on to hold that no such authorization existed, explaining that the enabling statute “empowers [OSHA] to set workplace standards, not broad public health measures.”[38]

Echoing the majority opinion, Justice Gorsuch summarized the issue before the Court as one of “who decides” the major question.[39]  He further posited that the nondelegation and major questions doctrines, which are “closely related,” shed light on that question.[40]  He explained that both serve to keep lawmaking power “where Article I of the Constitution says it belongs—with the people’s elected representatives.”[41]  And the power to decide how to address the pandemic, as the law exists today, he argued, “rests with the States and Congress, not OSHA.”[42]

Ultimately, much remains to be seen as to what extent the Court will cut back on Chevron deference.  But there is little doubt (1) that a majority of the Court is sympathetic to the nondelegation and major questions doctrines; and (2) that cases challenging agency action will continue to arise.  In fact, West Virginia v. EPA, a case from the current Term, presents yet another opportunity for the Court to weigh in on the major questions doctrine.[43]  There, the Court will answer “[w]hether . . . Congress constitutionally authorized the [EPA] to issue significant rules—including those capable of reshaping the nation’s electricity grids . . . .”[44]  Plaintiffs have good reason to believe that the merits of their challenges look increasingly promising.  Nevertheless, having already used it twice this term to invalidate agency action, court watchers anticipate “[a] major battle of the ‘major questions’ doctrine” in this case and beyond.[45]


[1] 142 S. Ct. 661 (2022).

[2] Id. at 662.

[3] Id.

[4] Id. at 668 (Gorsuch, J., concurring) (“[T]he major questions doctrine is closely related to what is sometimes called the nondelegation doctrine.”).

[5] See generally Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984) (When deciding whether an agency’s interpretation of a statute is valid, courts look to (1) whether the statute at issue is ambiguous; and, if so, (2) whether the agency’s interpretation is reasonable.).  This standard of review is widely considered to be highly deferential to agencies in the rulemaking process.  See Michigan v. EPA, 576 U.S. 743, 761 (2015) (Thomas, J., concurring) (“Chevron deference . . . forc[es] [judges] to abandon what they believe is ‘the best reading of an ambiguous statute’ in favor of an agency’s construction.  It thus wrests from Courts the ultimate interpretative authority to ‘say what the law is,’ and hands it over to the Executive.”) (citations omitted).

[6] See Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 668–69 (Gorsuch, J., concurring) (Justices Thomas and Alito joined Justice Gorsuch in emphasizing the important role the nondelegation and major questions doctrines play in “protect[ing] the separation of powers.”).

[7] U.S. Const. art. I, § 1.

[8] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[9] Field v. Clark, 143 U.S. 649, 692 (1892).

[10] Indus. Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 673 (1980) (Rehnquist, J., concurring) (“The rule against delegation of legislative power is not, however, so cardinal a principle as to allow for no exception.”).

[11] U.S. Const. art. II, § 3 (“[The President] shall take Care that the Laws be faithfully executed . . . .”).

[12] Morton v. Ruiz, 415 U.S. 199, 231 (1974) (“The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.”).

[13] Indus. Union Dep’t, 448 U.S. at 673 (Rehnquist, J., concurring).

[14] The Federalist No. 48 (James Madison).

[15] Indus. Union Dep’t, 448 U.S. at 673–74 (Rehnquist, J., concurring) (“This Court . . . has recognized that a hermetic sealing-off of the three branches of government from one another could easily frustrate the establishment of a National Government capable of effectively exercising the substantive powers granted to the various branches by the Constitution.”).

[16] Id.

[17] Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

[18] See cases cited infra notes 19–22 and accompanying text.

[19] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 668 (2022) (Gorsuch, J., concurring).

[20] Whitman, 531 U.S. at 472.

[21] Indus. Union Dep’t, 448 U.S. at 685–86 (Rehnquist, J., concurring) (noting that “the nondelegation doctrine serves three important functions” in (1) upholding democracy, (2) requiring guidance from Congress to the agency, and (3) providing standards against which courts may assess agency action).

[22] Worth noting here is the Supreme Court’s longstanding doctrine to avoid constitutional questions when a case may be resolved on lesser, often statutory, grounds.  See Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018).  Accordingly, administrative law cases often turn on this third question to avoid the more substantial constitutional issue.  Taking the OSHA rule, for example, the Court held that Congress did not delegate the agency the authority to impose a vaccine-or-test requirement; it did not address whether Congress, and thus the federal government, has the inherent constitutional power to do so.  Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[23] See generally Advisory Opinions, Supreme Court Blocks Vaccine Mandate, The Dispatch, at 22:58 (Jan. 14, 2022), https://advisoryopinions.thedispatch.com/p/supreme-court-blocks-vaccine-mandate?s=r (explaining that, with respect to OSHA’s rule, “nondelegation is that Congress can’t give OSHA the power,” while “major question doctrine is that Congress didn’t give OSHA the power”).

[24] Nat’l Fed’n of Indep. Bus., 142 S. Ct. at 662.

[25] Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984).

[26] Id.

[27] Id. at 844. 

[28] FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159 (2000).

[29] Gonzalez v. Oregon, 545 U.S. 243, 266–67 (2006) (“Because . . . policymaking expertise account[s] in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.” (quoting Martin v. OSHRC, 499 U.S. 144, 153 (1991))).

[30] The congressional delegation of power, however, is an issue as old at the republic.  See generally Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 281 (2021), https://columbialawreview.org/content/delegation-at-the-founding/ (“The Founders would thus have said that agencies wield legislative power to the extent they adopt rules that Congress could have enacted as legislation.”). Cf Ilan Wurman, Nondelegation at the Foudning, 130 Yale L.J. 1490, 1503 (2021), https://www.yalelawjournal.org/pdf/Wurman_d4111w2k.pdf (“In the first dozen years after Ratification, members of the Founding generation involved in public life and government repeatedly argued that Congress could not delegate its legislative power to the Executive.”).

[31] SEC v. Chenery Corp., 322 U.S. 194, 207 (1947).  

[32] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[33] King v. Burwell, 576 U.S. 473, 485–486 (2015) (quoting Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014).

[34] Brown & Williamson Tobacco Corp., 529 U.S. at 159.

[35] Nat’l Fed’n of Indep. Bus. v. OSHA, 142 S. Ct. 661, 667 (2022) (Gorsuch, J., concurring) (“We sometimes call this the major questions doctrine.”).

[36] Id. at 665–66.

[37] Id. at 665.

[38] Id. at 665.

[39] Id. at 667 (Gorsuch, J., concurring).

[40] Id. at 668 (Gorsuch, J., concurring).

[41] Id. at 668–69 (Gorsuch, J., concurring) (“The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials” in an effort to deflect blame or shirk responsibility.).

[42] Id. at 670 (Gorsuch, J., concurring).

[43] Amy Howe, Greenhouse Gases and “Major Questions”: Justices to Hear Argument on EPA’s Power to Tackle Climate Change, SCOTUSblog (Feb. 27, 2022, 6:03 PM), https://www.scotusblog.com/2022/02/greenhouse-gases-and-major-questions-justices-to-hear-argument-on-epas-power-to-tackle-climate-change/.

[44] West Virginia v. Environmental Protection Agency, SCOTUSblog, https://www.scotusblog.com/case-files/cases/west-virginia-v-environmental-protection-agency/ (last visited April 12, 2022).

[45] Howe, supra note 43.