The Volokh Conspiracy
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Is a summary order from the shadow docket precedential? Before NFIB v. OSHA, I think this question was open. Judge Trevor McFadden and Vetan Kapoor wrote a helpful article summarizing the issue. Fulton, for example, quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese. But after NFIB v. OSHA, I think the precedential question is now settled.
The six-member majority favorably cited the Court's summary order in Alabama Association of Realtors. Indeed, this citation is one of the most important elements of the entire opinion:
The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is no "everyday exercise of federal power." In re MCP No. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. "We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). There can be little doubt that OSHA's mandate qualifies as an exercise of such authority.
In the very next sentence, the Court articulates how to apply the Alabama doctrine:
The question, then, is whether the Act plainly authorizes the Secretary's mandate. It does not.
The word "plainly" is very important. It imports something of a clear-statement rule when construing broad delegations of authority–regardless of whether the statute is ambiguous.
Here is the cited passage from the Alabama case:
We expect Congress to speak clearly when authorizing an agency to exercise powers of "vast 'economic and political significance.'" Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)).
Why would the Court cite Alabama, when this quotation obviously comes from UARG and Brown & Williamson. I think the answer is that Alabama goes beyond those two decisions to articulate a more robust understanding of the major questions doctrine–namely the clear statement rule. In NFIB v. OSHA, the Court was endorsing the reasoning of this important shadow docket case.
Justice Gorsuch's concurrence in NFIB expressly links Alabama with the major questions doctrine:
It must also act consistently with the Constitution's separation of powers. And when it comes to that obligation, this Court has established at least one firm rule: "We expect Congress to speak clearly" if it wishes to assign to an executive agency decisions "of vast economic and political significance." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted). We sometimes call this the major questions doctrine. Gundy v. United States, 588 U. S. ___, ___ (2019) (GORSUCH, J., dissenting) (slip op., at 20)
Gorsuch goes out of his way to say the the "Court has established" a "firm rule" on the shadow docket. The NFIB Court stopped short of endorsing Gorsuch's separate writing. But, it did endorse Alabama.
In my view, the Court has lent its precedential imprimatur to the shadow docket. And now, presumably, lower courts can favorably cite shadow docket precedents as well.