NFIB v. OSHA Cites Shadow Docket Decision As Precedential

What is a summary order of the shadow docket? Before NFIB v. OSHAThis question is open to me. Vetan Kapoor and Judge Trevor McFadden wrote an article that summarized the issues. Fulton, fOder example, quite deliberately did not cite Tandom v. Newsom or Roman Catholic Diocese. But after NFIB v. OSHAI believe the question precedential is settled.

Six-member majority cited Court’s summary order favorably. Alabama Association of Realtors. This is a crucial element in the whole opinion.

The Secretary has ordered 84 million Americans to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense. This is not an “everyday exercise federal power”. MCP Number. 165, 20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a significant encroachment into the lives—and health—of a vast number of employees. We expect Congress to be clear when it authorizes an agency with powers that have a great economic or political impact. Alabama Assn. of Realtors v. Department of Health and Human Servs., 594U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted).It is clear that OSHA’s mandate can only be considered as an exercise such authority.

The Court then outlines how to apply this decision. Alabama doctrine:

Now, the question is: Is it legal? Simply putThe Secretary is authorized to execute his/her mandate. It is not.

Important is the use of “plainly”. It imports something of a clear-statement rule when construing broad delegations of authority–regardless of whether the statute is ambiguous.

Below is the quoted passage from The Alabama case:

When authorizing an agency with powers of “vast economic and political significance,” we expect Congress to be clear. Utility Air Regulation Group v. EPA, 573 U. S. 302, 324 (2014) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 160 (2000)).

Why does the Court quote? AlabamaWhen this quote is obviously from, UARGAnd Brown & Williamson. The answer to that question is, I believe, “Yes.” Alabama These two decisions are not enough to explain the main questions doctrine, namely the clear statement rule. You can find out more at In NFIB v. OSHAThe Court supported the Court’s decision in the important shadow docket matter.

Justice Gorsuch has given his consent in NFIB Expressly linked Alabama With the doctrine of major questions:

The Constitution requires that it be consistent with its separation of powers. It must also comply with that obligation. This Court establishedAt least one rule that is firm: “We expect Congress will speak clearly,” if Congress wishes to assign executive agency decisions that are “of immense economic and/or political significance.” Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. ___, ___ (2021) (per curiam) (slip op., at 6) (internal quotation marks omitted).This is sometimes called the major questions doctrine. Gundy v. United States, 588 U. S. ___, ___ (2019) (GORSUCH, J., dissenting) (slip op., at 20)

Gorsuch will go out of his way for the statement that the Court has made a firm rule on the shadow docket. It is The NFIB Gorsuch’s writing was not supported by the Court. It did however endorse the separate Gorsuch writing. Alabama.

I believe that the Court has given its precedential stamp of approval to the shadow Docket. It is now possible for lower courts to favorably reference shadow docket precedents.