Goldilocks and the Three Major Questions Cases

Hot and cold porridge in Alabama, NFIB, and Missouri.

Recently, the Court has decided three cases that turn on the major questions doctrine: Alabama Association of Realtors, NFIB v. OSHA, and Biden v. Missouri. Each of these cases turn on whether Congress used sufficient language to delegate a power to executive branch. Admittedly, these three cases lack much guidance for the lower courts.

The trilogy reminds me of the classic fable, Goldilocks and the Three Bears. A little girl tries the porridge of three bears. The first bowl is too hot. The second bowl is too cold. The third bowl is just right.

In NFIB v. OSHA, the Court held that the OSH Act "plainly" does not authorize the mandate. In Alabama, the Court at least entertained the possibility that the delegation was "ambiguous," but in the absence of a clear statement, the "sheer scope of the CDC's claimed authority under §361(a) would counsel against the Government's interpretation." But in Biden v. Missouri, the Court found that "[t]he rule thus fits neatly within the language of the statute."

Going forward, how are the lower courts to decide whether a delegation is in the Goldilocks Zone? Too clear, but limited to a particular context? Not clear enough, but reasonable? Or just right?

Comments

[Mark Regan]

Aren't you presuming a little casually that the OSHA case applied a major questions doctrine? The term "major questions" appears about 10 times in Justice Gorsuch's concurrence and not at all in the per curiam opinion. Just because Justice Gorsuch says the per curiam opinion is applying the major questions doctrine doesn't mean that it actually is.

[Bubba Jones]

I don't understand why this is so controversial.

If congress wanted to plainly instruct OSHA to implement a vaccine mandate, they could do it tomorrow.

In the meantime, the default should always be that the executive agency doesn't have the power to do whatever the hell it is trying to do this week.

I would better understand the controversy if the question were whether congress itself had the power to do something.

[Alpheus W Drinkwater]

It's controversial because even though Congress clearly DID give OSHA the authority to issue such a mandate, the conservatives on the Supreme Court don't like it, so they manufactured an interpretational doctrine not supported by text or history.

[MP]

Clearly.

[Noscitur a sociis]

Going forward, how are the lower courts to decide whether a delegation is in the Goldilocks Zone? Too clear, but limited to a particular context? Not clear enough, but reasonable? Or just right?

What is the Goldilocks Zone in your model? Which case corresponds to which characterization?