OSHA’s COVID-19 Vaccine Mandate: Why Justice Gorsuch’s Analysis of the Mandate as an Elephant in a Mousehole Misses the Mark

Authors

Wyatt Rex Allred

Abstract

Administrative law doctrines such as Chevron seek to strike a balance between adequate delegated power and sufficient checks on such power. The major questions doctrine reinforces the latter. Recent decisions finding major questions, however, have shown a departure from textualist principles, which formed the doctrine s foundation. Justice Gorsuch's opinion in NFIB v. OSHA is an example of this desertion of textualist principles and should thus be viewed as an improper application of the major questions doctrine. Rather than remodeling the major questions doctrine, textualist judges should acknowledge that this form of anti-textual analysis is nothing short of a revival of the nondelegation doctrine. Failing to return the doctrine to textualist principles weakens the reliability of the major questions doctrine as a tool for statutory interpretation and damages the credibility of textualist judges' opinions that employ the doctrine in administrative law cases.

Rights

© 2023 Brigham Young University Law Review

Recommended Citation

Wyatt Rex Allred, OSHA’s COVID-19 Vaccine Mandate: Why Justice Gorsuch’s Analysis of the Mandate as an Elephant in a Mousehole Misses the Mark, 48 BYU L. Rev. 2281 (2023).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol48/iss7/9