The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The OSHA Mandate, the Congressional Review Act, and the Major Question Doctrine

A majority disapproval vote in both Houses supports the position that the rule is beyond the scope of delegated authority.


Co-blogger Jon Adler observed that the OSHA mandate will likely be subject to a Congressional Review Act vote. Even if the CRA disapproval resolution obtains a majority in both houses, President Biden will almost certainly veto it. I do not know if the votes are present to override the veto. Still, Jon wrote that a CRA resolution could have political value. I agree. And I think there is another possible value.

As we speak, briefs are being filed throughout the country to challenge the mandate. Most, if not all cases, will implicate the major question doctrine. The plaintiffs will argue that Congress did not intend to delegate such a sweeping authority to OSHA, thus the statute should be read more narrowly. In other words, absent a clearer statement of congressional intent, the presumption should be that the Labor Department lacks the authority to take this broad action.

Usually, this sort of inquiry is guesswork. The courts cannot actually ask Congress whether they intended to delegate this authority. Indeed, such an inquiry would require a séance, as OSHA was enacted five decades ago. Still, a CRA resolution would be useful. It would show that a majority of the current Congress does not approve of the OSHA mandate. Granted, members can disapprove of the rule for a host of reasons. But for those who look at legislative history, the record will be replete with statements that the Labor Department lacks the delegated authority to take this action.