Supreme Court mulling decision on OSHA’s ETS on COVID-19

‘Major questions’ doctrine

The argument over the “clear authority” from Congress is important because it’s at the heart of what’s known as the “major questions” or “major rules” doctrine, which has been used in recent Supreme Court cases. That doctrine typically is reserved for regulations involving significant political or economic considerations.

OSHA has stated that the ETS, which would be applicable to employers with at least 100 employees, would cover 84 million workers, or around two-thirds of private-sector workers. Keller claims the rule could lead to billions of dollars in costs and between 1% and 3% of workers leaving their jobs.

The “major questions” doctrine typically also involves the nondelegation doctrine, a principle stemming from Article I of the Constitution, that Congress cannot delegate its authority to other entities. Therefore, under that doctrine, if Congress hasn’t explicitly permitted an agency to take an action, the courts must strike down that action.

Like Kagan, critics say the “major questions” doctrine puts administrative decisions into the hands of unaccountable judges. That doctrine is also a reversal from what’s known as the Chevron Deference.

That legal test set forth by the Supreme Court in a 1984 decision held that the judiciary was supposed to defer to agencies as long as its actions were deemed reasonable and as long as Congress hadn’t clearly addressed the particular issue at hand.

Possibility of a stay

Breyer and Justice Samuel Alito asked all three lawyers about a short-term administrative stay of the ETS to give the court time to decide before OSHA begins enforcement of its ETS.

One of the agency’s two key dates has passed without the court weighing in. The other is Feb. 9.

“OSHA will not issue citations for noncompliance with any requirements of the ETS before Jan. 10 and will not issue citations for noncompliance with the standard’s testing requirements before Feb. 9, so long as an employer is exercising reasonable, good-faith efforts to come into compliance with standard,” the agency has stated on its website.

Alito asked Prelogar if the federal government objected to the court “taking a couple of days” to consider the ETS.

“These cases arrived at this court just a short time ago,” Alito said. “They present lots of difficult, complicated issues. We have hundreds of pages of briefings. We’re receiving very helpful arguments this morning.”

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