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.

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  1. The views of today’s Congress are categorically irrelevant to determining the intent of the Congress that enacted the OSH Act. The Supreme Court has said repeatedly that subsequent legislative history is not a legitimate tool of statutory interpret. Someone who calls himself a textualist, like Josh, should know that. You would think that he would not be making this argument, then. Indeed, a so-called texualist like Josh should oppose reliance on legislative history altogether, whether prior or subsequent to a statute’s enactment. But Josh has no bona fide interpretive commitments other than “liberals must lose.” Josh is not a real scholar. He is a partisan advocate who will make any argument in favor of his preferred result, no matter how specious or unprincipled.

    1. Also, Josh does not seem to know what the major questions doctrine is. The major question doctrine holds simply that courts will decide statutory interpretation questions involving questions of great political or economic significance under de novo review, without Chevron deference. It does not say anything about whether a particular agency action is warranted; it is not a “no major actions” rule. It just says that courts decide the issue de novo. Josh would be well advised to learn the very basics of what he’s talking about before mouthing off. It’s astonishing to see a professor reveal such fundamental ignorance about the topic he’s opining on.

    2. Legislative history/debate regarding the passage of a law is not very useful for original intent of a law, but it's entirely useful to determine where the Congress is at a particular time. For example, a majority of the Senate and House signed onto an amicus brief in Heller, for Heller. If you don't think that's useful for the plaintiffs, you're missing something.

      1. How Congress feels about the OSH Act is irrelevant to the legal question presented in these suits. It would be highly inappropriate for a court to take into consideration how Congress felt about the OSHA regulation in considering whether to uphold it, peak judicial activism. That is what Josh is asking for—courts to invalidate the regulation on the ground that current members of Congress don’t like it. For someone who is so quick to call out others for judicial activism, he is very eager to embrace judicial activism himself. If Congress doesn’t like what OSHA is doing, it has an option: pass a law. Asking the court to do its job for it is improper. Josh knows this, he just doesn’t care because for him the only thing that matters is liberals losing.

        1. If you don't think the Supreme Court doesn't put their finger to the wind for public opinion, and Congressional opinion...well, then you're wrong. Dead wrong.

          Cases are not questions go into the machine and like a robotic process the judges crank away and come out with an answer.

          1. Josh isn’t saying the courts *will* do that, he’s saying they *should* do that. That’s rank judicial activism, inappropriate and a violation of their oath, but according to Josh, that’s fine when conservatives do it. The term for that is “partisan hack.”

  2. I do not know if the votes are present to override the veto.


  3. Is Prof. Blackman's objection to this regulatory development rooted entirely in gape-jawed superstition, or does it rely on the broader mix of antisocial, virus-flouting contrarianism and disaffected, belligerent ignorance popular among our vestigial clingers?

    1. A collection of ninety-eight cent words that amount to nothing.

  4. Ok, now this was funny:

    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.

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