NFIB v. OSHAThe Supreme Court decided that Congress didn’t clearly delegate the power to adopt the OSHA mandate. However, the application of the major question doctrine can only be guessed at. It’s impossible to know what the 1970 Congress intended. The Congressional Review Act offers the opportunity to change that. Present Congress has the opportunity to comment on this issue.
NFIBThe majority opinion pointed out that the Senate has already passed a CRA Resolution that rejected the rule.
Actually, on December 8, 2021, the Senate voted a majority against the regulation. This was the Senate’s most significant action regarding vaccine mandate. S. J. Res. 29, 117th Cong., 1st Sess. (2021)
Justice Gorsuch also agreed with the observation.
In fact, the majority vote was even cast by Senators Disapprove OSHA’s regulation. S.J. Res. 29, 117th Cong., 1st Sess. (2021).
How about the House? According to my understanding, the Speaker hasn’t yet put the matter on his calendar and has not approved a discharge petition. If I’m wrong, please email me.
What happens if the House approves the resolution? This is when the Resolute desk will receive the resolution. Then President Biden will have to make a decision.
He could first do nothing and let the resolution become law. However, he could do nothing and allow the resolution to become law. It seems unlikely that this path will be taken. In its present form, the Supreme Court has almost killed this rule. The agency might issue a “targeted” ruling that is more focused on areas with high levels of congestion or other problems. However, a ban on the issuance of “substantially identical” rules will likely prevent the agency from issuing a narrower-tailored one.
The second option is for Biden to quietly veto the resolution. With its regulatory powers intact, this option would permit OSHA’s to draft a new rule.
The third option is that Biden could voice his opposition to the resolution. Biden could sign a statement declaring that he is expressing his support for the resolution. DisputesThe Supreme Court has imposed federal power. Rarely does a president have the chance to make an official legal motion that contradicts Supreme Court precedent. This would however be an exception.
Despite all the talk about “Court Reform”, this President, and many others, are too submissive to the Justices. Joe Biden has an Andrew Jackson moment. He’ll likely take the second door and silently veto it.