After NFIB v. OSHA, Would President Biden Veto a CRA Resolution for the OSHA Mandate?

If the House passes the Congressional Review Act Resolution, President Biden would have an opportunity to publicly disavow the Supreme Court's decision.

In NFIB v. OSHA, the Supreme Court found that Congress did not plainly delegate the authority to enact the OSHA mandate. Of course, any application of the major questions doctrine is guesswork. It is impossible to go back in time and ask the 1970 Congress what they intended. But the Congressional Review Act provides the current Congress with an opportunity to opine on the issue.

In NFIB, the majority opinion observed that the Senate already passed a CRA resolution that disapproved of the rule:

In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021)

Justice Gorsuch's concurrence made the same observation:

Indeed, a majority of the Senate even voted to disapprove OSHA's regulation. See S.J. Res. 29, 117th Cong., 1st Sess. (2021).

What about the House? My understanding is that the Speaker has not yet placed the matter on the calendar, and there has not yet been a discharge petition approved. (Please email me if I am mistaken).

Still, what happens if the House passes the disapproval resolution? At that point, the resolution goes to the Resolute Desk. And President Biden would face a choice.

First, he could do nothing, and allow the resolution to become law. But doing nothing would prevent the agency from issuing a "substantially similar" rule in the future. I think that path is unlikely. The Supreme Court has all-but-killed the rule in its presentat incarnation. But the agency could try to issue a more "targeted" rule that focuses on "particularly crowded or cramped environments." But a ban on "substantially similar" rules would probably prevent issuing a more narrowly-tailored rule.

Second, Biden could veto the resolution, quietly. That option would allow OSHA to proceed to craft a new rule, with its regulatory power intact.

Third, Biden could veto the resolution, noisily. The President could issue a signing statement, saying he expressly disagrees with the Supreme Court's construction of federal power. It is very rare that a President has the opportunity to take an official legal action that disavows Supreme Court precedent. But this would be one such opportunity.

For all the caterwauling about "Court Reform," this President and others are far too submissive towards the Justices. Joe Biden can have an Andrew Jackson moment! Alas, he'll probably take door #2, and quietly veto the resolution.

Comments

[Darth Chocolate]

Dude, if English is not your first language, you should proof your writing before posting.

In the FIRST sentence: "...did not plainly delegation the authority...".

Then in the paragraph beginning with "First": "The Supreme Court has all-but-killed the rule in its presentation incarnation."

Really?

[jdgalt1]

Agree.

[Noscitur a sociis]

A minute spent proofreading is a minute that you can't spend on a new hot take. Or adding another line to your 100 page resume.

[Rev. Arthur L. Kirkland]

I will attempt to spare you a defamation claim by correcting the record: It is currently a 135-page resume.

Some people learn the hard way that strong schools tend to read resumes rather than weigh them. But they will learn.

[Brett Bellmore]

In my experience doing your own proof reading is only effective under two circumstances:

1) You've been away from the work long enough to see it fresh.

2) You hit post half a second earlier.

Other than those circumstances, the tendency to read what you meant to write, instead of what you DID write, is overwhelming. Proof reading, like checking engineering drawings, is really something you need to have somebody else do for you.

[Brett Bellmore]

Um, if he were to veto the CRA resolution, even 'quietly', it wouldn't be him being submissive to the Justices, it would be him telling Congress that they don't have any say in how their own laws are interpreted.

That's not "submissive", that would be a very aggressive assertion of executive supremacy!

[David Nieporent]

Um, it's not "their own laws." And separation of powers means that, in fact, Congress doesn't have any say in how the laws are interpreted.

[Brett Bellmore]

It is, in fact, exactly "their own laws", since regulations have no constitutional basis for existing except that they are, supposedly, putting laws into effect.

[David Nieporent]

You missed my point: it's not "their" own laws. Congress doesn't have a proprietary interest in the laws; they're just the mechanism for enacting them. And certainly not a Congress from 50 years after a law was passed.

[MatthewSlyfield]

Third, Biden could veto the resolution, noisily. The President could issue a signing statement, saying he expressly disagrees with the Supreme Court's construction of federal power. It is very rare that a President has the opportunity to take an official legal action that disavows Supreme Court precedent. But this would be one such opportunity.

That would not be a legal action that disavows Supreme Court precedent. It would be a legally meaningless action.

[ReaderY]

Why in the world would a House with Democratic leadership pass such a resolution?

[Peter Gerdes]

I presume the thought is that this might happen after the midterms but I really hope this isn't still a live issue by then.

[Lee Moore]

1. i think there's a time limit, so the House might be too late if it waited till 2023

2. But anyway - can the Senate's passage of a CRA resolution carry over to the next session of Congress for the House to pass a resolution ? I doubt it, but presumably somebody more learned than I knows.

[Brett Bellmore]

It can if the House and Senate leadership are both in agreement, because in that case the courts would invoke the enrolled bill doctrine, and refuse to entertain any challenge to the action.

[Michael P]

Presumably they would not. I think the better question is why the House is not voting it down. Do they not have the votes? Or do they just want to save their members from having to vote against the CRA resolution?

[MatthewSlyfield]

I'm still trying to figure out how it passed in the current Senate.

[David Nieporent]

Tester and Manchin.

[MatthewSlyfield]

How did they force the Democrat Majority Leader to allow it to come to a vote?

[Brett Bellmore]

There's a Senate "fast track" provision in the CRA that privileges such resolutions; It only takes 30 Senators to force a vote on one, and a simple majority can force it to happen without debate. (Which is limited to 10 hours anyway.)

Pages 19-21.

There is, however, no fast track provision for the House. OTOH, no filibuster in the House, either, so if a majority favors the resolution, they can force the issue.

[MatthewSlyfield]

The Senate passed it with Democratic leadership.

[Peter Gerdes]

I don't understand how such a veto would demonstrate a disagreement with the court. As you point out the exercise of the CRA would block OSHA from issuing narrower regulations that SCOTUS hasn't yet considered so there is no logical implication from a veto to the conclusion that Biden is even leaving open the possibility of reissuing the regulation deemed unconstitutional. Also, presidents veto legislation for all sorts of reasons that aren't about the strict legal consequences. His veto could equally well simply be a symbolic statement that he believes Congress should authorize a vaccine mandate not a claim about whether it already has.

More generally, what makes a veto of special interest? If Biden wants to disagree with the court he can just say so. There is no sense in which vetoing a CRA resolution on the matter gives extra legal effect that simply asserting that the court got it wrong wouldn't. And presidents aren't unwilling to do that (Obams and Citizens United).

More generally, don't understand the focus on the veto.

[Lee Moore]

It seems to be that Prof Blackman could do a practical service to Truth, Justice and the American Way (that is to say the sort of conservative ideals he seems to support) - thus :

1. Try to clarify the extent of the "substantally similar" rule in the CRA - ie if a CRA resolution is passed, and so the executive branch is barred from issuing a "substantially similar" regulation in future, what does that actually mean ? I don't mean clarify by writing articles, but by identifying a test case where a later regulation looks like a good candidate to be barred by a prior CRA reg. I believe Trump issued a couple of likely candidates. The object would be to get a good chunk of precedent on file as to how the courts would interpret "substantially similar."

2. Then draft 12,907 regulations for the next R President to pass. All of which should be crafted so that they are similar to the sort of nutty leftist regs that the Ds produce by the bucketful when they are in. You may add in existing nutty leftist regs too, since i assume it is possible to withdraw an old nutty reg, and then promulgate a new nutty reg of broadly similar effect, thus making a new CRA-able reg out of an old one.

3. Then, once you have your set of regs ready to go - wait until you have a suitable R President with a suitable R Senate and Congress, and then promulgate and then CRA all 12,907 regs, thereby salting the ground for future D administrations' nutty regs. So long as you've drafted your regs carefully, and in accordance with the precedent you've established....

4. ....you then have a reasonable prospect of dismantling the apparat and its power, bit by bit. No change to filibuster rules required.

The CRA is one of the few asymmetrical weapons in the arsenal that favors conservatives. it should be used more often.

[Brett Bellmore]

It's an asymmetrical weapon that only works if the Congressional leadership give a damn about the rules. So, no, it doesn't favor conservatives all that much.

[Abdul Abulbul Amir]

Noisily! Georgia was a warm up. He could call the Supremes racists, traitors, or worse.

[Alpheus W Drinkwater]

'Where Did Our Love Go' was a dog-whistling screed against interracial marriage.