After NFIB v. OSHA, Would President Biden Veto a CRA Decision for the OSHA Mandate?


In NFIB v. OSHA, the Supreme Court docket discovered that Congress didn’t plainly delegation the authority to enact the OSHA mandate. In fact, any software of the main questions doctrine is guesswork. It’s unattainable to return in time and ask the 1970 Congress what they meant. However the Congressional Assessment Act supplies the present Congress with a chance to opine on the problem.

In NFIB, the bulk opinion noticed that the Senate already handed a CRA decision that disapproved of the rule:

Actually, probably the most noteworthy motion regarding the vaccine mandate by both Home of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021. S. J. Res. 29, 117th Cong., 1st Sess. (2021)

Justice Gorsuch’s concurrence made the identical remark:

Certainly, a majority of the Senate even voted to disapprove OSHA’s regulation. See S.J. Res. 29, 117th Cong., 1st Sess. (2021).

What concerning the Home? My understanding is that the Speaker has not but positioned the matter on the calendar, and there has not but been a discharge petition permitted. (Please electronic mail me if I’m mistaken).

Nonetheless, what occurs if the Home passes the disapproval decision? At that time, the decision goes to the Resolute Desk. And President Biden would face a alternative.

First, he might do nothing, and permit the decision to grow to be regulation. However doing nothing would stop the company from issuing a “considerably comparable” rule sooner or later. I feel that path is unlikely. The Supreme Court docket has all-but-killed the rule in its presentation incarnation. However the company might attempt to difficulty a extra “focused” rule that focuses on “notably crowded or cramped environments.” However a ban on “considerably comparable” guidelines would in all probability stop issuing a extra narrowly-tailored rule.

Second, Biden might veto the decision, quietly. That possibility would enable OSHA to proceed to craft a brand new rule, with its regulatory energy intact.

Third, Biden might veto the decision, noisily. The President might difficulty a signing assertion, saying he expressly disagrees with the Supreme Court docket’s building of federal energy. It is vitally uncommon {that a} President has the chance to take an official authorized motion that disavows Supreme Court docket precedent. However this is able to be one such alternative.

For all of the caterwauling about “Court docket Reform,” this President and others are far too submissive in direction of the Justices. Joe Biden can have an Andrew Jackson second! Alas, he’ll in all probability take door #2, and quietly veto the decision.

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