Samuel Alito
Supreme Court Justice Samuel Alito testifies before House Appropriations Committee on Capitol Hill in Washington on March 7, 2019.(AP Photo/Susan Walsh)

When the Supreme Court blocked the Biden administration’s vaccine-or-test mandate for large employers, its three most conservative justices also issued a little-noticed concurring opinion with ominous implications. In it, they gave voice to an expansive interpretation of the “non-delegation doctrine,” which holds that Congress cannot delegate its legislative powers to the executive branch. When agencies issue broad regulations, the argument goes, they are effectively legislating, thereby violating the Constitution’s separation of powers.

How far the Court will take this reasoning is an open question. But its most outspoken champion, Justice Neil Gorsuch, who wrote the concurring opinion, was joined by Justices Clarence Thomas and Samuel Alito in an alarming pronouncement: that even if the law allowed the Occupational Safety and Health Administration to issue the mandate—which existing law did not, the 6–3 majority ruled—such a statute should be overturned.

“On the one hand, OSHA claims the power to issue a nationwide mandate on a major question but cannot trace its authority to do so to any clear congressional mandate,” Gorsuch, Thomas, and Alito declared. “On the other hand, if the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority.”

With two more votes on the Court, that position could hobble the federal government’s ability to apply health, safety, and environmental laws across the board. Indeed, a case involving the EPA, to be argued next month, might provide an opportunity for a ruling of considerable scope.

Gorsuch has made clear his hostility to regulators and the lawmakers who enable them. His OSHA opinion cited an article impugning the motives of legislators who might delegate merely to avoid accountability for controversial decisions. He then wrote the following, quoting himself in part from an earlier case:

If Congress could hand off all its legislative powers to unelected agency officials, it “would dash the whole scheme” of our Constitution and enable intrusions into the private lives and freedoms of Americans by bare edict rather than only with the consent of their elected representatives.

Not all six conservatives are on board with this, judging by the lineup of justices. Gorsuch’s concurring opinion was not signed by the other three—Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett.

Furthermore, there was no mention of the non-delegation doctrine in the companion case involving health care employees. By a vote of 5–4, with Roberts and Kavanaugh joining the three liberals, the Court upheld the administration’s vaccine mandate for facilities receiving Medicare and Medicaid payments. 

Interestingly, the dissenting opinion in the health care case, written by Alito, did not address the non-delegation doctrine but argued only that the law didn’t authorize the mandate. Why? Reading tea leaves on the Court is highly speculative, but since Barrett signed the dissent, perhaps she was unwilling to reach the constitutional question, at least in this instance. Unlike the OSHA concurring opinion, this one had no contention that a law allowing the mandate would be unconstitutional.

Nevertheless, the next case, West Virginia v. Environmental Protection Agency, opens a window for conservatives who don’t like government regulation. Here is a fundamental ideological dispute between liberals who value more government intervention in the private economy versus conservatives who work to keep government small and ineffectual. The pendulum swings dramatically from Republican to Democratic administrations, as from Donald Trump’s emasculation of federal enforcement agencies to Joe Biden’s restoration of their authority.

The Court could hold the pendulum at the right-hand limit of its swing. Oral arguments are scheduled for February 28 on the EPA’s powers under the Clean Air Act to limit greenhouse gases. The very fact that the case was accepted, which required the agreement of at least four justices, suggests a Court poised to rule broadly.

That is because the matter could have been considered premature, in that it involves EPA rules not yet issued. The case began after the Trump administration repealed the previous Obama administration’s 2015 Clean Power Plan, which set limits on power plants’ carbon dioxide emissions. Trump discarded the plan and substituted the more relaxed Affordable Clean Energy Rule; both actions were vacated by the D.C. Circuit. With neither plan in effect, the Biden administration has told the Supreme Court that litigation would be appropriate only after a new regulation is issued.

But conservatives see the broad issues as ripe for consideration. One is whether the federal government can constitutionally override or replace the police powers of the states. Another is the separation of powers at the federal level. 

West Virginia’s polemical brief sets the stage for a consequential ruling. “Seven years ago,” the state begins, “the Environmental Protection Agency tried to name itself the country’s central energy planning authority by reshaping the power grids and seizing control over electricity production nationwide.” The agency “weaponized a statute intended to improve pollution controls at regulated facilities, using it to bankrupt industries that the agency disfavored instead.” The language seems designed to appeal to Gorsuch and his allies.

The brief explicitly raises the non-delegation question. It argues that statutes pass constitutional muster only by containing constraints on executive branch agencies, and it quotes amply from a Gorsuch dissent on that point in an earlier case.

West Virginia contends that the D.C. Circuit Court’s reading of the law makes it appear to lack the essential constraints. Under the lower court’s interpretation, the state’s brief contends, the statute authorizes the EPA to impose such rules on the entire economy as limited electricity use, rolling brownouts, and “caps and quotas for all emitters, including manufacturing plants and private homes.”

The Supreme Court could—and probably will—strike down or narrow the D.C. Circuit’s permissive interpretation of the law. But it could go farther. Judicial reviews of regulatory actions usually focus on whether the statute authorizes the agency to act as it has. And there are enough gray areas in generally worded statutes that the reality usually lies in the eye of the beholder. As the multiple opinions in the vaccine-mandate cases illustrate, some judges—especially conservative activists these days—seem to begin where they want to end and work backward to justify their conclusions.

It’s possible that the Court will overturn or undermine the 1984 precedent Chevron v. Natural Resources Defense Councilwhich gives deference to regulatory agencies in areas where Congress is vague or silent. In a modern, complex society, after all, the legislative branch cannot be expected to anticipate every specific issue arising in applying the law. Agencies with professional expertise need the latitude to translate their authorizing statutes into real-life, day-to-day enforcement.

Justice John Paul Stevens recognized this when he wrote the majority opinion in Chevron

If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency … We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer, and the principle of deference to administrative interpretations.

John Paul Stevens, it might be remembered, was nominated by a Republican president, Gerald Ford, in the days when nonpartisan integrity on the bench was a hallmark of the republic. No longer. Among the well-known handicaps facing the country, add the portent of a government weakened in its ability to combat global warming, protect consumers, and defend the health of its citizens.  

David K. Shipler

David K. Shipler is a Washington Monthly contributing writer; Pulitzer Prize–winning author of seven books, including Russia: Broken Idols, Solemn Dreams; and former Moscow bureau chief for The New York Times. He blogs at The Shipler Report and cohosts the podcast Two Reporters. Follow David on Twitter @DavidShipler.