At Law & Liberty, John McGinnis: Jabbing the Administrative State. From the introduction:
Epochal events often generate canonical Supreme Court cases. During the Korean War, President Harry Truman ordered his Secretary of Commerce to seize and operate a group of steel mills to ensure continued operations in the face of a strike. In Youngstown Sheet & Tube v. Sawyer, the Supreme Court held that Truman lacked authority to give that order, because Congress had never delegated him such power.
The decision has rightly been hailed as an essential invocation of the principle of limited government—in this case, that the President, at least domestically, has no greater authority than that which Congress chooses to grant. It remains the most important separation of powers decision of the last century. And since the separation of powers is an important structural protection for liberty, it is one of the most important liberty-protecting decisions the Court has handed down.
Last week, in NFIB v. OSHA, the Court struck down another action of a President in a national emergency. This time the emergency was natural rather than man-made—the Covid pandemic. And this time the President’s order did not take over businesses outright but instead mandated that they require their employees be vaccinated unless they mask and frequently test.
This case may turn out to be critically important for administrative law, with vital implications for the separation of powers. It potentially cabins the awesome authority of the modern administrative state to make impositions on our liberty in three separate ways: by circumscribing the deference that agencies get for their statutory interpretations, by forcing Congress to speak clearly if it wants to invest an agency with significant authority, and by requiring an administration to give the real rather than pretextual reasons for its administrative decision making. As with Youngstown, the decision was prompted by an emergency, but it is significant because it will apply a fortiori in more quotidian circumstances.
And from later on:
One striking legacy of Youngstown is that it was not Justice Black’s majority opinion that has had the most influence but Justice Robert Jackson’s concurrence. Indeed, Jackson’s concurrence may be the most important concurrence in the history of the Supreme Court. Jackson softened the hard-edged Black opinion, suggesting that there were times the President might be able to act in emergency situations so long as it was not contrary to the expressed will of Congress.
In the OSHA case, Justice Gorsuch wrote a concurrence potentially as important as Jackson’s. He argued that even if Congress had made it clear that OSHA could regulate any public health danger it deemed necessary to protect workplace health, he still would have invalidated the statute because Congress had not provided sufficiently clear standards for exercising that substantial power. Thus, he would have revived the nondelegation doctrine and required Congress to provide much clearer direction on the way power was to be exercised beyond telling agencies what power was to be exercised. If his view were accepted, many delegations which clearly give great and largely standardless authority to agencies would have to be reconsidered. Of course, we should not necessarily think this concurrence will become the law, as only Justices Clarence Thomas and Samuel Alito joined it.
But even if the majority opinion, and not the concurrence, is the primary indicator for the future, the Roberts Court has served notice that administrative law may look different going forward. The Court rather than the agency will interpret major questions in statutes. Congress will need to be pellucid about what major powers it chooses to delegate. And the administration will have to offer up the real reasons for administrative actions or risk being second-guessed by the judiciary. Though they will not eliminate it, all of these new doctrines combine to tame the modern administrative state.
Agreed, and I like that the essay connects the vaccine mandate case to Youngstown, the canonical case limiting executive power. The vaccine mandate case, and others like it, are typically discussed as limits on administrative agencies. But most often (as with the vaccine mandate case) they are really limits on executive power. It was only nominally OSHA, and in fact the President, that imposed the vaccine mandate. Limiting the ability of executive agencies to justify actions under broad, vague, and not-on-point statutes limits executive power, as surely as Youngstown limited executive power to act in the absence of any statute.
It's odd that center-left judges and commentators, who claim great concern about unlimited executive power, do not worry about the President's ability to claim broad power from basically standardless statutes.
Posted at 6:05 AM