The Supreme Court's new “major questions” doctrine in administrative law holds that, because the court will “presume that ‘Congress intends to make major policy decisions itself, not leave those decisions to agencies,’” it will not allow a federal agency to act on major issues unless there is “‘clear congressional authorization’ for the power it claims.”
With this remarkable legal innovation, the Supreme Court might as well have transformed Fox News into a quasi-government entity with the power to amend federal law.
This rule purports to be in the service of democracy, an aid to carrying out the decisions of the people’s elected representatives.
The Supreme Court’s enthusiastic deployment of this doctrine began in January 2022, when it blocked a workplace safety rule requiring that employees in large workplaces either be vaccinated for COVID or be tested weekly and wear masks at work.
The underlying statute’s language is unambiguous: The Occupational Safety and Health Administration must issue an “emergency temporary standard” if the agency determines that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful,” when the standard is “necessary to protect employees from such danger.”
The opinion’s dissenters (Steven Breyer, Sonya Sotomayor and Elena Kagan) noted that “the majority does not contest that COVID-19 is a........