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In NFIB v. OSHA, the Supreme Court found that Congress did not plainly delegation the authority to enact the OSHA mandate. Of course, any application of the major questions doctrine is guesswork. It is impossible to go back in time and ask the 1970 Congress what they intended. But the Congressional Review Act provides the current Congress with an opportunity to opine on the issue.

In NFIB, the majority opinion observed that the Senate already passed a CRA resolution that disapproved of the rule:

In fact, the most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021)

Justice Gorsuch’s concurrence made the same observation:

Indeed, a majority of the Senate even voted to disapprove OSHA’s regulation. See S.J. Res. 29, 117th Cong., 1st Sess. (2021).

What about the House? My understanding is that the Speaker has not yet placed the matter on the calendar, and there has not yet been a discharge petition approved. (Please email me if I am mistaken).

Still, what happens if the House passes the disapproval resolution? At that point, the resolution goes to the Resolute Desk. And President Biden would face a choice.

First, he could do nothing, and allow the resolution to become law. But doing nothing would prevent the agency from issuing a “substantially similar” rule in the future. I think that path is unlikely. The Supreme Court has all-but-killed the rule in its presentation incarnation. But the agency could try to issue a more “targeted” rule that focuses on “particularly crowded or cramped environments.” But a ban on “substantially similar” rules would probably prevent issuing a more narrowly-tailored rule.

Second, Biden could veto the resolution, quietly. That option would allow OSHA to proceed to craft a new rule, with its regulatory power intact.

Third, Biden could veto the resolution, noisily. The President could issue a signing statement, saying he expressly disagrees with the Supreme Court’s construction of federal power. It is very rare that a President has the opportunity to take an official legal action that disavows Supreme Court precedent. But this would be one such opportunity.

For all the caterwauling about “Court Reform,” this President and others are far too submissive towards the Justices. Joe Biden can have an Andrew Jackson moment! Alas, he’ll probably take door #2, and quietly veto the resolution.

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