In his opinion concurring with today’s decision striking down OSHA’s vaccine/testing/masking rule, Justice Gorsuch reiterated the arguments he made in Gundy about congressional accountability. “The nondelegation doctrine ensures democratic accountability by preventing Congress from intentionally delegating its legislative powers to unelected officials.” “Sometimes lawmakers may be tempted to delegate power to agencies to ‘reduc[e] the degree to which they will be held accountable for unpopular actions.'”
Jed Stiglitz, Chris Warshaw, and I recently filed an amicus brief in West Virginia v. EPA, the pending case about the EPA’s authority to regulate greenhouse gas emissions in certain ways, refuting these kinds of accountability claims. In a nutshell, they’re empirically unfounded because members of Congress typically wouldn’t be rewarded or punished for the extra stances they would have to take if the major question or nondelegation doctrines were enforced more aggressively. Whatever other bases these doctrines might have, they shouldn’t be grounded in improved accountability.