Excerpt

SCOTUS:Who decides?

SUPREME COURT OF THE UNITED STATES:JUSTICE GORSUCH, JUSTICE THOMAS and JUSTICE ALITO, concurring.

Cite as: 595 U. S. ____ (2022)

GORSUCH, J., concurring

SUPREME COURT OF THE UNITED STATES

Nos. 21A244 and 21A247

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS, ET AL., APPLICANTS

21A244 v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

OHIO, ET AL., APPLICANTS

21A247 v.

DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY

AND HEALTH ADMINISTRATION, ET AL.

ON APPLICATIONS FOR STAYS

[January 13, 2022]

JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.

The central question we face today is: Who decides? No one doubts that the COVID–19 pandemic has posed challenges for every American. Or that our state, local, and national governments all have roles to play in combating the disease. The only question is whether an administrative agency in Washington, one charged with overseeing work-place safety, may mandate the vaccination or regular testing of 84 million people. Or whether, as 27 States before us submit, that work belongs to state and local governments across the country and the people’s elected representatives in Congress. This Court is not a public health authority. But it is charged with resolving disputes about which authorities possess the power to make the laws that govern us under the Constitution and the laws of the land.

[page] 2 NATIONAL FEDERATION OF INDEPENDENT BUSINESS v. OSHA

GORSUCH, J., concurring

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I start with this Court’s precedents. There is no question that state and local authorities possess considerable power to regulate public health. They enjoy the “general power of governing,” including all sovereign powers envisioned by the Constitution and not specifically vested in the federal government. (1)(2)(3) And in fact, States have pursued a variety of measures in response to the current pandemic. E.g., (3)(4)

The federal government’s powers, however, are not general but limited and divided. See(5). Not only must the federal government properly invoke a constitutionally enumerated source of authority to regulate in this area or any other. 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.” (6). We sometimes call this the major questions doctrine. (7)

OSHA’s mandate fails that doctrine’s test. The agency claims the power to force 84 million Americans to receive a vaccine or undergo regular testing. By any measure, that is a claim of power to resolve a question of vast national significance. Yet Congress has nowhere clearly assigned so much power to OSHA. Approximately two years have passed since this pandemic began; vaccines have been