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Justices Can Alter ‘Major Questions’ Law in Shot-or-Test Case

Jan. 10, 2022, 9:09 PM

The U.S. Supreme Court’s imminent decision on whether to block the Biden administration’s Covid-19 shot-or-test rule for large employers will likely turn on a judicial doctrine that can limit agency authority to act on major issues facing the country, several legal scholars said.

The high court’s discussion of the “major questions doctrine” late last week left some legal observers wondering if the justices will expand its use to tie agencies’ hands in the face of emerging threats like the coronavirus pandemic.

“The oral argument on Friday created the distinct impression that for the first time there is a working majority on the court favoring an aggressive application of the major questions doctrine that would sharply reduce the ability of federal administrative agencies to safeguard public health and welfare,” said Richard Lazarus, a law professor at Harvard University who’s argued more than a dozen cases at the court.

The Supreme Court’s conservative majority signaled skepticism about the shot-or-test rule during a special session Friday. The justices could decide in a matter of days whether to put the regulation on hold at the request of a coalition of Republican-led states and a union of business groups.

The Occupational Safety and Health Administration’s emergency measure calls on employers with at least 100 employees to mandate that their workers get vaccinated or be tested regularly. Most of the rule’s requirements are set to kick in Monday, though OSHA has said it won’t issue citations until at least Feb. 9 to employers that are trying in good faith to comply with the testing requirements.

The GOP states and business groups raised the major questions doctrine to argue that the rule exceeds OSHA’s authority under the Occupational Safety and Health Act.

The doctrine says that courts don’t have to defer to an agency’s interpretation of an ambiguous law if it involves an issue of major importance. The court has applied it in just a handful of cases, including decisions on tobacco regulation and the Affordable Care Act. Most recently, it played a crucial role in the court’s ruling against the Centers for Disease Control and Prevention’s order blocking residential evictions.

“The major questions canon will be central in the court’s decision whether to stay the OSHA rule for large workplaces, as it was for the decision on the CDC eviction moratorium,” said Nina Mendelson, a law professor at the University of Michigan.

Beyond Ambiguity?

Justice Brett Kavanaugh queried during oral argument whether the major questions doctrine should only apply when the law that an agency relies on is ambiguous.

Kavanaugh said the court has “used words like vague, subtle, oblique, cryptic, and ambiguous to describe the kind of language that would trigger the major questions doctrine, if it is a major question.”

Solicitor General Elizabeth Prelogar pushed back on Kavanaugh’s claim, saying that the court has found a “textual and structural reason” to find fault with agency action in previous cases involving the doctrine. It hasn’t “confronted broad language and said, ‘Oh, it seems cryptic or oblique and so it’s a major question, and we’re not going to give it its plain meaning,’” she said.

Justice Neil Gorsuch similarly questioned whether a statute needs to be ambiguous for the doctrine to come into play. But he also provided reasons why the shot-or-test rule may be significant enough for it to apply assuming the law is ambiguous.

Gorsuch—who said the case “turns a lot on the major questions doctrine”—cited the breadth of the rule, states’ traditional responsibility for overseeing vaccination, Congress’ inaction on Covid-19 inoculation mandates, and the regulation falling outside of OSHA’s traditional domain.

Chief Justice John Roberts also showed interest in the major questions doctrine, even if he didn’t refer to it by name, said Jonathan Adler, a law professor at Case Western Reserve University. For example, Roberts sharply questioned whether the Biden administration’s agency-by-agency approach was an attempt to do something major that it doesn’t have the power to do, Adler said.

‘Huge Uptick’

The justices’ focus on the doctrine was unsurprising given that it’s a central piece of the argument against the rule, said Richard Revesz, a law professor at New York University. But their questions don’t guarantee that it will determine the outcome of the case, he said.

The court’s consideration of the doctrine comes after a “huge uptick” in litigants—including the Trump administration, Republican attorneys general, and business groups—invoking it over the past decade in attempts to invalidate regulations, said Revesz, who’s written about its recent use.

In their push to use it as a weapon against regulations, those litigants have deployed the doctrine in a “very promiscuous and unbounded way” that doesn’t specify its limits, when it applies, or even its consequences, he said. Some have argued that it goes beyond denying deference to agencies’ interpretations and instead takes away their power to issue the regulations in the first place, he said.

The Supreme Court hasn’t been clear about how it determines what questions are major, said Aaron Saiger, a professor at Fordham University.

“Part of me has a sense that the rough test is whether the question has been on the front page of the Times, Wall Street Journal, and the Washington Post,” Saiger said. “That is sort of an alarming way to deal with these things.”

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Martha Mueller Neff at