Libertarianism as Constitutional Interpretation
By Eric Segall
Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHA, which invalidated OSHA's COVID vaccination rules and to one of the most important constitutional law cases in history Youngstown Tube & Sheet Co., v. Sawyer. In that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies.
The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law:
It potentially cabins the awesome authority of the modern administrative state to make impositions on our liberty in three separate ways: by circumscribing the deference that agencies get for their statutory interpretations, by forcing Congress to speak clearly if it wants to invest an agency with significant authority, and by requiring an administration to give the real rather than pretextual reasons for its administrative decision making. As with Youngstown, the decision was prompted by an emergency, but it is significant because it will apply a fortiori in more quotidian circumstances.
McGinnis gives the game away by being so delighted about the Court cabining the "awesome authority of the administrative state to make impositions on our liberty." Others might believe that the OSHA regulations requiring employers with more than 100 employees to either have them vaccinated or masked/tested was an important step to protect the American people from a terrible pandemic--a step courts should not second guess. But let's talk about the law instead.
First, going back to Youngstown, McGinnis says that it "remains the most important separation of powers decision of the last century." He also states that a "striking legacy of Youngstown is that it was not Justice Black’s majority opinion that has had the most influence but Justice Robert Jackson’s concurrence. Indeed, Jackson’s concurrence may be the most important concurrence in the history of the Supreme Court." This assessment is consistent with the conventional wisdom about the case.
And yet, McGinnis, the self-avowed originalist, fails to mention, much less discuss, one of the most famous paragraphs from Jackson's opinion:
Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.
McGinnis, of course, so enthralled by the Court's overturning of President Truman's decision, seems not to be bothered by this explicit rejection of originalism in the most important separation of powers case in the last century (maybe ever).
Now, returning to NFIB v. OSHA, I agree with McGinnis that administrative agencies ought to give the real reasons for their decisions and not use pretext to accomplish objectives outside their statutory authority. I disagree with him that OSHA's regulations were pretextual for getting more people vaccinated as opposed to protecting the safety of workplaces, but ultimately that part of the case isn't that important because we all agree with the legal standard that agencies must give the real reasons for their decisions. But McGinnis's other two reasons for liking the decision have nothing to do with law (text and history) and everything to do with his libertarian politics and values.
McGinnis likes NFIB because it limits "the deference that agencies get for their statutory interpretations." He approves of the Court giving no deference to agencies' interpretations of their own rules if the case involves a "major question." Under this doctrine, the usual deference the Court gives to agencies under the famous Chevron doctrine is suspended. McGinnis says that is a good thing because:
This doctrine assures that government will no longer begin any debate on a central interpretive question with the thumb already on one side of the scale. It is thus a victory for due process. It will also help stabilize government by ensuring that interpretations of important issues will be decided by the judiciary, which is less susceptible to the vicissitudes of changing administrations.
The idea that unelected, life-tenured federal judges across the country, not just Supreme Court Justices, should give federal agencies no deference when they interpret their own rules, will of course lead to more agency rules being struck down, increasing economic liberty while getting the big, bad federal government off the backs of big business. But there is no support in text or history for such a rule. It is just a libertarian's dream come true. McGinnis cites no text or history to support his joyous approval of the Supreme Court overturning the President's decision during an emergency, other than Steel Seizure, which was emphatically not an administrative law case.
McGinnis also likes NFIB because it says that "Congress must speak clearly if it wants to invest an agency with significant authority." He calls this clear statement rule the "major powers doctrine." He strongly favors this rule for the following reasons:
[It] prioritizes the judiciary over the executive: it is for the judiciary, not the agency to engage in the central questions of legislative meaning. The 'major powers' doctrine [also] prioritizes Congress over the judiciary. It is for Congress to give agencies major powers, not for the Court to infer those powers from an unclear text.
The major powers doctrine also reflects the separation of powers by policing congressional delegations to executive agencies. The Constitution entrusts the authority to make rules, like the one at issue in this case, to Congress alone. Congress cannot avoid this responsibility by sloughing off authority to the executive.
Again, McGinnis cites no text or history for these ideas. There is nothing in the Constitution, or its original meaning, suggesting that Congress's authority to delegate "major powers," to federal agencies, whatever that even means, rests with Congress alone. It is certainly true that federal agencies can only issue rules consistent with Congressional delegations. But as Professors Julian Mortenson and Nicholas Bagley have demonstrated in a lengthy and important law review article, at the Founding, Congress gave federal agencies broad powers to make all kinds of important decisions. McGinnis, of course, does not address any of that history.
As a policy matter, Congress cannot legislate in detail and must rely, and has always relied, on federal agencies to carry out its broad ideals. We all want less pollution, but the changing nature of environmental threats--from climate change to the numerous causes of dirty air and water--are not issues Congress can stay on top of on a regular basis. So it delegates to experts, within parameters, sometimes quite broad, sometimes more narrow, the day-to-day responsibility of figuring out the best ways to fight environmental dangers. In a country of our size, with 50 states, and over 330 million people, there is no other way. Unless of course one believes, as do McGinnis and the Republican Party, that regulations in general are bad and that a free market is always or almost always, the best answer. But that choice has nothing to do with originalism or textualism. It is a naked policy preference. It is libertarianism as constitutional interpretation.