Important article by Michael Linhorst in The New Republic on Percoco v. United States, a political bribery case that the Supreme Court will hear this term. While the other election law cases on the docket have monopolized much of the conversation, Percoco looms just as large because the Court could potentially undermine public corruption laws. Great insights on this issue from Dean Dan Tokaji, Ciara Torres-Spelliscy, and Fred Wertheimer in the article. Check it out!
There is much to say about the Court’s opinions in NFIB v. OSHA staying the Occupational Safety and Health Administration’s emergency rule requiring employers with at least 100 employees “to ensure their workforces are fully vaccinated or show a negative test at least once a week.” But I’d like to focus in this post on how stunningly atextual Justice Gorsuch’s concurring opinion (and for that matter, the per curiam opinion) was. Gorsuch’s concurring opinion in particular is almost entirely about the major questions doctrine—which he formulates as a rule that “We expect Congress to speak clearly if it wishes to assign to an executive agency decisions of vast economic and political significance.” The major questions doctrine is a substantive policy canon that limits the delegation of power from the legislative to the executive branch. It is not a textual canon but, rather, a normative one—as are all substantive canons at bottom. (Justice Scalia himself recognized this, calling such policy canons “dice-loading rules” that are “a lot of trouble” to “the honest textualist” in his influential Tanner Lectures, later published as a book.).
But textualists, and other jurists, have long relied on substantive canons to tip the scales in statutory cases; so what is truly stunning about Justice Gorsuch’s opinion is not its invocation of the major questions doctrine, but its complete lack of any accompanying textual analysis. Usually, when the Justices invoke a substantive canon, they also at least attempt to analyze the statute’s text—even if only to conclude that the text is ambiguous, thereby (conveniently) necessitating recourse to a substantive canon. But neither Justice Gorsuch’s opinion nor the per curiam opinion in NFIB v. OSHA attempts even the pretext of such textual analysis. There is no careful parsing or discussion of the ordinary meaning of the OSH Act provision that authorizes OSHA to issue “emergency” regulations upon determining “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” There are no dictionary definitions of the statutory terms “emergency,” “substances,” “agents,” “physically harmful,” or “new hazards.” One must look to the dissenting opinion authored by Justices Kagan, Breyer, and Sotomayor for such close textual analysis of the relevant OSH Act language and accompanying dictionary definitions. The closest either the per curiam or Justice Gorsuch’s concurring opinions comes to any textual analysis of the operative statutory terms is a handful of ipse-dixit sentences in the per curiam opinion that repeat (and italicize) the term “occupational”—the implication being, presumably, that that term so obviously does not apply to hazards from a highly transmissible infectious disease that spreads when individuals come into close contact with each other, as happens regularly at indoor workplaces, as to eliminate the need for any analysis.
Aside from its lack of close textual analysis, Justice Gorsuch’s concurring opinion also incongruently invokes a number of decidedly atextual interpretive tools and methods of argument that textualists (and originalists) usually denigrate. Most notably, Justice Gorsuch points to the inaction of the present-day Congress in the two years since the pandemic began as evidence of a lack of legislative intent to authorize OSHA (or any federal agency) to issue a vaccine mandate. Textualists usually deplore such uses of legislative inaction to infer statutory meaning and deny the relevance of legislative intent altogether—moreover, in keeping with their originalist focus on the ordinary meaning of statutory terms at the time the statute was enacted, they reject any references to what contemporary legislators might think a statute means. If this weren’t bad enough, Justice Gorsuch then cites a 2021 Senate resolution disapproving the regulation at issue, a form of subsequent legislative history, or “statutory history” as I and others have called it, that is in fundamental tension with textualism’s theoretical critique of legislative history. (Problems, from a textualist point of view, with reliance on the Senate resolution include that it was adopted by only one chamber of Congress and was not signed into law by the President—thereby failing to meet the bicameralism and presentment requirements articulated in Article I, Section 7 of the Constitution.) All of this is done, again, in lieu of closely parsing the text enacted by the Congress that drafted and passed the OSH Act in 1970.
Last, Justice Gorsuch’s opinion makes a distinctly functionalist argument against the validity of OSHA’s regulation, observing that since the emergency provision of the OSH Act at issue was enacted some 50 years ago, “OSHA has relied on it to issue only comparatively modest rules addressing dangers uniquely prevalent inside the workplace, like asbestos and rare chemicals.” This appeal to past practice again, is strikingly at odds with the formalist, text-based approach that textualist jurists usually take to such administrative law questions.
So what to make of the Court’s, and especially Justice Gorsuch’s, total abandonment of textual analysis in this case? I am not cynical by nature and typically resist partisan, cynical readings of the Court’s statutory cases, but it is hard to view this case as anything other than a sign that at least in high-stakes political cases, the conservative Justices on the modern Roberts Court no longer feel the need to follow a textualist or formalist approach to statutory interpretation even as a pretext to justify reaching their preferred interpretive outcomes.
My friend and NYU colleague Rick Pildes, anticipating the Supreme Court’s ruling in the Arizona redistricting case, argues strongly for the Court to let independent redistricting commissions flourish. The question presented – – whether “legislature” can be read to mean an independent, unelected body to which complete redistricting authority is delegated – – strikes Rick as somewhat beside the point.
The Framers could not have thought about this question, Rick writes, and so could not have ruled out this institutional innovation. While “not naïve about the risk that officeholders would try to aggrandize their own power”, they “didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process.” Other democracies have worked successfully with these institutions, and Rick contends that ours should be able to do so as well, as an effective means of addressing partisan self-interestedness in the drawing of district lines.
We will see Monday, of course, how all this goes. But Rick’s interesting argument relies on a few assumptions that merit a close look.