The Precedential Value of Shadow Docket Cases

West Virginia v. EPA included the COVID cases in the Major Questions Canon.

Over the past year, the Supreme Court decided three important cases concerning the major questions doctrine. The third decision, West Virginia v. EPA, was decided on the regular docket. But the first two cases, like most COVID cases, were rendered on the shadow docket.

First, Alabama Association of Realtors v. HHS declared unlawful the eviction moratorium. Second, NFIB v. OSHA declared unlawful the vaccine/testing mandate. Both unsigned opinions relied on the major questions doctrine. At the time, I wrote that the Court has treated these shadow docket cases as precedential.

Now, we have West Virginia v. EPA. And the Court cites the Alabama case as part of the major questions canon. Here, the Court invokes Alabama and Brown & Williamson in the same breath:

Such cases have arisen from all corners of the administrative state. In Brown & Williamson, for instance, the Food and Drug Administration claimed that its authority over "drugs" and "devices" included the power to regulate, and even ban, tobacco products. Id., at 126–127. We rejected that "expansive construction of the statute," concluding that "Congress could not have intended to delegate"such a sweeping and consequential authority "in so cryptic a fashion." Id., at 160. In Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 3), we concluded that the Centers for Disease Control and Prevention could not, under its authority to adopt measures "necessary to prevent the . . . spread of " disease, institute a nationwide eviction moratorium in response to the COVID–19 pandemic. We found the statute's language a "wafer-thin reed" on which to rest such a measure, given "the sheer scope of the CDC's claimed authority," its "unprecedented" nature, and the fact that Congress had failed to extend the moratorium after previously having done so. Id., at ___–___ (slip op., at 6–8).

And here, the Court lists Alabama in a string cite with Brown & Williamson and Gonzales v. Oregon:

And the Agency's discovery allowed it to adopt a regulatory program that Congress had conspicuously and repeatedly declined to enact itself. Brown & Williamson, 529 U. S., at 159–160; Gonzales, 546 U. S., at 267–268; Alabama Assn., 594 U. S., at ___, ___ (slip op., at 2, 8). 

The Court also cites NFIB v. OSHA in the same passage as Gonzales v. Oregon:

Similar considerations informed our recent decision invalidating the Occupational Safety and Health Administration's mandate that "84 million Americans . . . either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense." National Federation of Independent Business v. Occupational Safety and Health Administration, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 5). We found it "telling that OSHA, in its half century of existence," had never relied on its authority to regulate occupational hazards to impose such are markable measure. Id., at ___ (slip op., at 8). 

By contrast, Fulton quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese.

I think the Court is signaling that a published decision with some analysis should be treated as precedential, even if rendered in the absence of full briefing and oral argument. Relatedly, Judge Trevor McFadden and Vetan Kapoor wrote a helpful article summarizing whether an emergency stay order is precedential.