First 16 Pages of the following Supreme Court Opinion directly retrieved from the PDF file:///C:/Users/JDA/AppData/Local/Temp/21a244_hgci.pdf

We need to learn how to read and understand how and what the LAWS being made for and against us are created, implemented and Enforced in EVERY moment of our living and being from Birth to Death. I hope you find this of interest…. the dissenting opinions begin after JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.

There will come a day very soon when we all will have to compose and ratify a more perfect Constitution in order to secure the freedoms we have been stripped of in this 21st Century…but first we must re-learn what they were, it’s been a generation …

Yours with respect, compassion, loving kindness and HOPE!

Nobody, stranded on the Isle of Cyclopes with you, my Friend.

(Slip Opinion) Cite as: 595 _ Per Curiam NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.SUPREME COURT OF THE UNITED STATES Nos. 21A244 and 21A247NATIONAL FEDERATION OF INDEPENDENT BUSINESS, ET AL., APPLICANTS 21A244 v.DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL.OHIO, ET AL., APPLICANTS 21A247 v. DEPARTMENT OF LABOR, OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, ET AL. ON APPLICATIONS FOR STAYS [January 13, 2021]

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

The Secretary of Labor, acting through the Occupational
Safety and Health Administration, recently enacted a vac-
cine mandate for much of the Nation’s work force. The

mandate, which employers must enforce, applies to roughly
84 million workers, covering virtually all employers with at
least 100 employees. It requires that covered workers re-
ceive a COVID–19 vaccine, and it pre-empts contrary state
laws. The only exception is for workers who obtain a medi-
cal test each week at their own expense and on their own
time, and also wear a mask each workday. OSHA has never
before imposed such a mandate. Nor has Congress. Indeed,
although Congress has enacted significant legislation ad-
dressing the COVID–19 pandemic, it has declined to enact

Per Curiam
any measure similar to what OSHA has promulgated here.
Many States, businesses, and nonprofit organizations
challenged OSHA’s rule in Courts of Appeals across the
country. The Fifth Circuit initially entered a stay. But
when the cases were consolidated before the Sixth Circuit,
that court lifted the stay and allowed OSHA’s rule to take
effect. Applicants now seek emergency relief from this
Court, arguing that OSHA’s mandate exceeds its statutory
authority and is otherwise unlawful. Agreeing that appli-
cants are likely to prevail, we grant their applications and
stay the rule.


Congress enacted the Occupational Safety and Health
Act in 1970. 84 Stat. 1590, 29 U. S. C. §651 et seq. The Act
created the Occupational Safety and Health Administra –
tion (OSHA), which is part of the Department of Labor and
under the supervision of its Secretary. As its name sug –
gests, OSHA is tasked with ensuring occupational safety—
that is, “safe and healthful working conditions.” §651(b). It
does so by enforcing occupational safety and health stand-
ards promulgated by the Secretary. §655(b). Such stand-
ards must be “reasonably necessary or appropriate to pro-
vide safe or healthful employment.” §652(8) (emphasis
added). They must also be developed using a rigorous pro-
cess that includes notice, comment, and an opportunity for
a public hearing. §655(b).
The Act contains an exception to those ordinary notice-
and-comment procedures for “emergency temporary stand-
ards.” §655(c)(1). Such standards may “take immediate ef-
fect upon publication in the Federal Register.” Ibid. They
are permissible, however, only in the narrowest of circum –
stances: the Secretary must show (1) “that employees are
exposed to grave danger from exposure to substances or
agents determined to be toxic or physically harmful or from

Cite as: 595 U. S. ____ (2022)
Per Curiam
new hazards,” and (2) that the “emergency standard is nec-
essary to protect employees from such danger.” Ibid. Prior
to the emergence of COVID–19, the Secretary had used this
power just nine times before ( and never to issue a rule as
broad as this one). Of those nine emergency rules, six were
challenged in court, and only one of those was upheld in full.
See BST Holdings, L.L.C. v. Occupational Safety and
Health Admin., 17 F. 4th 604, 609 (CA5 2021).
On September 9, 2021, President Biden announced “a
new plan to require more Americans to be vaccinated.” Re-
marks on the COVID–19 Response and National Vaccina-
tion Efforts, 2021 Daily Comp. of Pres. Doc. 775, p. 2. As
part of that plan, the President said that the Department
of Labor would issue an emergency rule requiring all em-
ployers with at least 100 employees “to ensure their work –
forces are fully vaccinated or show a negative test at least
once a week.” Ibid. The purpose of the rule was to increase
vaccination rates at “businesses all across America.” Ibid.
In tandem with other planned regulations, the administra-
tion’s goal was to impose “vaccine requirements” on “about
100 million Americans, two-thirds of all workers.” Id., at 3.
After a 2-month delay, the Secretary of Labor issued the
promised emergency standard. 86 Fed. Reg. 61402 (2021).
Consistent with President Biden’s announcement, the rule
applies to all who work for employers with 100 or more em-
ployees. There are narrow exemptions for employees who
work remotely “100 percent of the time” or who “work
exclusively outdoors,” but those exemptions are largely il –
lusory. Id., at 61460. The Secretary has estimated, for ex-
ample, that only nine percent of landscapers and
groundskeepers qualify as working exclusively outside. Id.,
at 61461. The regulation otherwise operates as a blunt in-
strument. It draws no distinctions based on industry or
risk of exposure to COVID–19. Thus, most lifeguards and

Per Curiam
linemen face the same regulations as do medics and meat-
packers. OSHA estimates that 84.2 million employees are
subject to its mandate. Id., at 61467.
Covered employers must “develop, implement, and en-
force a mandatory COVID–19 vaccination policy.” Id., at
61402. The employer must verify the vaccination status of
each employee and maintain proof of it. Id., at 61552. The
mandate does contain an “exception” for employers that re-
quire unvaccinated workers to “undergo [weekly] COVID–
19 testing and wear a face covering at work in lieu of vac-
cination.” Id., at 61402. But employers are not required to
offer this option, and the emergency regulation purports to
pre-empt state laws to the contrary. Id., at 61437. Unvac-
cinated employees who do not comply with OSHA’s rule
must be “removed from the workplace.” Id., at 61532. And
employers who commit violations face hefty fines: up to
$13,653 for a standard violation, and up to $136,532 for a
willful one. 29 CFR §1903.15(d) (2021).
OSHA published its vaccine mandate on November 5,
2021. Scores of parties—including States, businesses,
trade groups, and nonprofit organizations—filed petitions
for review, with at least one pe tition arriving in each re –
gional Court of Appeals. The cases were consolidated in the
Sixth Circuit, which was selected at random pursuant to 28
U. S. C. §2112(a).
Prior to consolidation, howe ver, the Fifth Circuit stayed
OSHA’s rule pending furth er judicial review. BST Hold –
ings, 17 F. 4th 604. It held that the mandate likely ex-
ceeded OSHA’s statutory authority, raised separation-of-
powers concerns in the absence of a clear delegation from
Congress, and was not properly tailored to the risks facing
different types of workers and workplaces.
When the consolidated cases arrived at the Sixth Circuit,
two things happened. First, many of the petitioners—

Cite as: 595 U. S. ____ (2022)
Per Curiam
nearly 60 in all—requested initial hearing en banc. Second,
OSHA asked the Court of Appeals to vacate the Fifth Cir-
cuit’s existing stay. The Sixth Circuit denied the request
for initial hearing en banc by an evenly divided 8-to-8 vote.
In re MCP No. 165, 20 F. 4th 264 (2021). Chief Judge Sut-
ton dissented, joined by seven of his colleagues. He rea-
soned that the Secretary’s “broad assertions of administra-
tive power demand unmistak able legislative support,”
which he found lacking. Id., at 268. A three-judge panel
then dissolved the Fifth Circuit’s stay, holding that OSHA’s
mandate was likely consistent with the agency’s statutory
and constitutional authority. See In re MCP No. 165, 2021
WL 5989357, ___ F. 4th ___ (CA6 2021). Judge Larsen dis-
Various parties then filed applications in this Court re-
questing that we stay OSHA’s emergency standard. We
consolidated two of those applications—one from the Na-
tional Federation of Independent Business, and one from a
coalition of States—and heard expedited argument on Jan-
uary 7, 2022.
The Sixth Circuit concluded that a stay of the rule was
not justified. We disagree.
Applicants are likely to succeed on the merits of their
claim that the Secretary lacked authority to impose the
mandate. Administrative agencies are creatures of statute.
They accordingly possess only the authority that Congress
has provided. The Secretary has ordered 84 million Amer-
icans to either obtain a COVID–19 vaccine or undergo
weekly medical testing at their own expense. This is no
“everyday exercise of federal power.” In re MCP No. 165 ,
20 F. 4th, at 272 (Sutton, C. J., dissenting). It is instead a
significant encroachment into the lives—and health—of a

Per Curiam
vast number of employees. “We expect Congress to speak
clearly when authorizing an agen cy to exercise powers of
vast economic and 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). There can be little doubt that
OSHA’s mandate qualifies as an exercise of such authority.
The question, then, is whether the Act plainly authorizes
the Secretary’s mandate. It does not. The Act empowers
the Secretary to set workplace safety standards, not broad
public health measures. See 29 U. S. C. §655(b) (directing
the Secretary to set “occupational safety and health stand-
ards” (emphasis added)); §655(c)(1) (authorizing the Secre-
tary to impose emergency temporary standards necessary
to protect “employees” from grave danger in the workplace).
Confirming the point, the Act’s provisions typically speak
to hazards that employees face at work. See, e.g., §§651,
653, 657. And no provision of the Act addresses public
health more generally, which falls outside of OSHA’s sphere
of expertise.
The dissent protests that we are imposing “a limit found
no place in the governing statute.” Post, at 7 (joint opinion
of BREYER, SOTOMAYOR, and KAGAN, JJ.). Not so. It is the
text of the agency’s Organic Act that repeatedly makes clear
that OSHA is charged with regulating “occupational” haz-
ards and the safety and health of “employees.” See, e.g., 29
U. S. C. §§652(8), 654(a)(2), 655(b)–(c).
The Solicitor General does not dispute that OSHA is lim-
ited to regulating “work-rela ted dangers.” Response Brief
for OSHA in No. 21A244 etc., p. 45 (OSHA Response). She
instead argues that the risk of contracting COVID–19 qual-
ifies as such a danger. We cannot agree. Although COVID–
19 is a risk that occurs in many workplaces, it is not an oc-
cupational hazard in most. COVID–19 can and does spread
at home, in schools, during sporting events, and everywhere
else that people gather. That kind of universal risk is no

Cite as: 595 U. S. ____ (2022)
Per Curiam
different from the day-to-day dangers that all face from
crime, air pollution, or any number of communicable dis-
eases. Permitting OSHA to regulate the hazards of daily
life—simply because most Americans have jobs and face
those same risks while on the clock—would significantly ex-
pand OSHA’s regulatory authority without clear congres-
sional authorization.
The dissent contends that OSHA’s mandate is compara –
ble to a fire or sanitation regulation imposed by the agency.
See post, at 7–9. But a vaccine mandate is strikingly unlike
the workplace regulations that OSHA has typically im-
posed. A vaccination, after all, “cannot be undone at the
end of the workday.” In re MCP No. 165, 20 F. 4th, at 274
(Sutton, C. J., dissenting). Contrary to the dissent’s conten-
tion, imposing a vaccine mandate on 84 million Americans
in response to a worldwide pandemic is simply not “part of
what the agency was built for.” Post, at 10.
That is not to say OSHA lacks authority to regulate occu-
pation-specific risks related to COVID–19. Where the virus
poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are
plainly permissible. We do not doubt, for example, that
OSHA could regulate researchers who work with the
COVID–19 virus. So too could OSHA regulate risks associ-
ated with working in particularly crowded or cramped en-
vironments. But the danger present in such workplaces dif-
fers in both degree and kind from the everyday risk of
contracting COVID–19 that all face. OSHA’s indiscrimi-
nate approach fails to account for this crucial distinction—
between occupational risk and risk more generally—and ac-
cordingly the mandate takes on the character of a general
public health measure, rather than an “occupational safety
or health standard.” 29 U. S. C. §655(b) (emphasis added).
In looking for legislative support for the vaccine mandate,
the dissent turns to the American Rescue Plan Act of 2021,
Pub. L. 117–2, 135 Stat. 4. See post, at 8. That legislation,

Per Curiam
signed into law on March 11, 2021, of course said nothing
about OSHA’s vaccine mandate, which was not announced
until six months later. In fact, the most noteworthy action
concerning the vaccine mandate by either House of Con-
gress has been a majority vote of the Senate disapproving
the regulation on December 8, 2021. S. J. Res. 29, 117th
Cong., 1st Sess. (2021).
It is telling that OSHA, in it s half century of existence,
has never before adopted a broad public health regulation
of this kind—addressing a threat that is untethered, in any
causal sense, from the workplace. This “lack of historical
precedent,” coupled with the breadth of authority that the
Secretary now claims, is a “telling indication” that the man-
date extends beyond the agency’s legitimate reach. Free
Enterprise Fund v. Public Company Accounting Oversight
Bd., 561 U. S. 477, 505 (2010) (internal quotation marks
The equities do not justify withholding interim relief. We
are told by the States and the employers that OSHA’s man-
date will force them to incur billions of dollars in unrecov-
erable compliance costs and will cause hundreds of thou-
sands of employees to leave their jobs. See Application in
No. 21A244, pp. 25–32; Application in No. 21A247, pp. 32–
33; see also 86 Fed. Reg. 61475. For its part, the Federal
Government says that the mandate will save over 6,500
lives and prevent hundreds of thousands of hospitaliza-
tions. OSHA Response 83; see also 86 Fed. Reg. 61408.
It is not our role to weigh such tradeoffs. In our system
of government, that is the responsibility of those chosen by
* The dissent says that we do “not contest,” post, at 6, that the mandate
was otherwise proper under the requirements for an emergency tempo-
rary standard, see 29 U. S. C. §655(c)(1). To be clear, we express no view
on issues not addressed in this opinion.

Cite as: 595 U. S. ____ (2022)
Per Curiam
the people through democratic processes. Although Con –
gress has indisputably given OSHA the power to regulate
occupational dangers, it has not given that agency the
power to regulate public heal th more broadly. Requiring
the vaccination of 84 million Americans, selected simply be-
cause they work for employers with more than 100 employ-
ees, certainly falls in the latter category.
* * *
The applications for stays presented to J USTICE
KAVANAUGH and by him referred to the Court are granted.
OSHA’s COVID–19 Vaccination and Testing; Emergency
Temporary Standard, 86 Fed. Reg. 61402, is stayed pending
disposition of the applicants’ petitions for review in the
United States Court of Appeals for the Sixth Circuit and
disposition of the applicants’ petitions for writs of certiorari,
if such writs are timely sought. Should the petitions for
writs of certiorari be denied, this order shall terminate au-
tomatically. In the event the petitions for writs of certiorari
are granted, the order shall terminate upon the sending
down of the judgment of this Court.
It is so ordered.

Cite as: 595 U. S. ____ (2022)
GORSUCH, J., concurring
Nos. 21A244 and 21A247
21A244 v.
21A247 v.
[January 13, 2022]
JUSTICE ALITO join, concurring.
The central question we face today is: Who decides? No
one doubts that the COVID–19 pandemic has posed chal –
lenges for every American. Or that our state, local, and na-
tional governments all have roles to play in combating the
disease. The only question is whether an administrative
agency in Washington, one charged with overseeing work –
place safety, may mandate the vaccination or regular test-
ing of 84 million people. Or whether, as 27 States before us
submit, that work belongs to state and local governments
across the country and the people’s elected representatives
in Congress. This Court is not a public health authority.
But it is charged with resolving disputes about which au –
thorities possess the power to make the laws that govern us
under the Constitution and the laws of the land.

GORSUCH, J., concurring
I start with this Court’s precedents. There is no question
that state and local authorities possess considerable power
to regulate public health. They enjoy the “general power of
governing,” including all sove reign powers envisioned by
the Constitution and not specifically vested in the federal
government. National Federation of Independent Business
v. Sebelius, 567 U. S. 519, 536 (2012) (opinion of R OBERTS,
C. J.); U. S. Const., Amdt. 10. And in fact, States have pur-
sued a variety of measures in response to the current pan –
demic. E.g., Cal. Dept. of Public Health, All Facilities Let-
ter 21–28.1 (Dec. 27, 2021); see also N. Y. Pub. Health Law
Ann. § 2164 (West 2021).
The federal government’s powers, however, are not gen-
eral but limited and divided. See McCulloch v. Maryland,
4 Wheat. 316, 405 (1819). Not only must the federal gov-
ernment properly invoke a constitutionally enumerated
source of authority to regulate in this area or any other. It
must also act consistently wi th the Constitution’s separa-
tion of powers. And when it comes to that obligation, this
Court has established at least one firm rule: “We expect
Congress to speak clearly” if it wishes to assign to an exec –
utive agency decisions “of vast economic and political sig-
nificance.” Alabama Assn. of Realtors v. Department of
Health and Human Servs., 594 U. S. ___, ___ (2021) (per cu-
riam) (slip op., at 6) (internal quotation marks omitted). We
sometimes call this the major questions doctrine. Gundy v.
United States, 588 U. S. ___, ___ (2019) (G ORSUCH, J., dis-
senting) (slip op., at 20).
OSHA’s mandate fails that doctrine’s test. The agency
claims the power to force 84 million Americans to receive a
vaccine or undergo regular testing. By any measure, that
is a claim of power to resolve a question of vast national
significance. Yet Congress has nowhere clearly assigned so
much power to OSHA. Approximately two years have
passed since this pandemic began; vaccines have been

3 Cite as: 595 U. S. ____ (2022)
GORSUCH, J., concurring
available for more than a year. Over that span, Congress
has adopted several major pieces of legislation aimed at
combating COVID–19. E.g., American Rescue Plan Act of
2021, Pub. L. 117–2, 135 Stat. 4. But Congress has chosen
not to afford OSHA—or any federal agency—the authority
to issue a vaccine mandate. Indeed, a majority of the Sen –
ate even voted to disapprove OSHA’s regulation. See S.J.
Res. 29, 117th Cong., 1st Sess. (2021). It seems, too, that
the agency pursued its regulatory initiative only as a legis-
lative “ ‘work-around.’ ” BST Holdings, L.L.C. v. OSHA, 17
F. 4th 604, 612 (CA5 2021). Far less consequential agency
rules have run afoul of the major questions doctrine. E.g.,
MCI Telecommunications Corp. v. American Telephone &
Telegraph Co., 512 U. S. 218, 231 (1994) (eliminating rate-
filing requirement). It is hard to see how this one does not.
What is OSHA’s reply? It directs us to 29 U. S. C.
§ 655(c)(1). In that statutory subsection, Congress author-
ized OSHA to issue “emergency” regulations upon deter-
mining that “employees are ex posed to grave danger from
exposure to substances or agen ts determined to be toxic or
physically harmful” and “that such emergency standard[s]
[are] necessary to protect employees from such danger[s].”
According to the agency, this provision supplies it with “al-
most unlimited discretion ” to mandate new nationwide
rules in response to the pandemic so long as those rules are
“ reasonably related ” to workplace safety. 86 Fed. Reg.
61402, 61405 (2021) (internal quotation marks omitted).
The Court rightly applies the major questions doctrine
and concludes that this lone statutory subsection does not
clearly authorize OSHA’s mandate. See ante, at 5–6. Sec-
tion 655(c)(1) was not adopted in response to the pandemic,
but some 50 years ago at the time of OSHA’s creation. Since
then, OSHA has relied on it to issue only comparatively
modest rules addressing dangers uniquely prevalent inside
the workplace, like asbestos and rare chemicals. See In re:
MCP No. 165, 20 F. 4th 264, 276 (CA6 2021) (Sutton, C. J.,

GORSUCH, J., concurring
dissenting from denial of initial hearing en banc). As the
agency itself explained to afederal court less than two years
ago, the statute does “not authorize OSHA to issue sweep-
ing health standards” that affect workers’ lives outside the
workplace. Brief for Department of Labor, In re: AFL–CIO,
No. 20–1158, pp. 3, 33 (CADC 2020). Yet that is precisely
what the agency seeks to do now—regulate not just what
happens inside the workplace but induce individuals to un-
dertake a medical procedure that affects their lives outside
the workplace. Historically, such matters have been regu-
lated at the state level by authorities who enjoy broader and
more general governmental powers. Meanwhile, at the fed-
eral level, OSHA arguably is not even the agency most as –
sociated with public health regulation. And in the rare in-
stances when Congress has sought to mandate
vaccinations, it has done so expressly. E.g., 8 U. S. C.
§ 1182(a)(1)(A)(ii). We have nothing like that here.
Why does the major questions doctrine matter? It en-
sures that the national government’s power to make the
laws that govern us remains where Article I of the Consti-
tution says it belongs—with the people’s elected represent-
atives. If administrative agencies seek to regulate the daily
lives and liberties of millions of Americans, the doctrine
says, they must at least be able to trace that power to a clear
grant of authority from Congress.
In this respect, the major questions doctrine is closely re-
lated to what is sometimes called the nondelegation doc-
trine. Indeed, for decades courts have cited the nondelega-
tion doctrine as a reason to apply the major questions
doctrine. E.g., Industrial Union Dept., AFL–CIO v. Ameri-
can Petroleum Institute, 448 U. S. 607, 645 (1980) (plurality
opinion). Both are designed to protect the separation of
powers and ensure that any new laws governing the lives of
Americans are subject to the robust democratic processes
the Constitution demands

5Cite as: 595 U. S. ____ (2022)
GORSUCH, J., concurring
The nondelegation doctrine ensures democratic account-
ability by preventing Congress from intentionally delegat-
ing 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 accounta-
ble for unpopular actions.” R. Cass, Delegation Reconsid-
ered: A Delegation Doctrine for the Modern Administrative
State, 40 Harv. J. L. Pub. Pol’y 147, 154 (2017). But the
Constitution imposes some boundaries here. Gundy, 588
U. S., at ___ (G ORSUCH, J., dissenting) (slip op., at 1). If
Congress could hand off all its legislative powers to une-
lected agency officials, it “would dash the whole scheme” of
our Constitution and enable intrusions into the private
lives and freedoms of Americans by bare edict rather than
only with the consent of their elected representatives. De-
partment of Transportation v. Association of American Rail-
roads, 575 U. S. 43, 61 (2015) (A LITO, J., concurring); see
also M. McConnell, The President Who Would Not Be King
326–335 (2020); I. Wurman, Nondelegation at the Found-
ing, 130 Yale L. J. 1490, 1502 (2021).
The major questions doctrine serves a similar function by
guarding against unintentional, oblique, or otherwise un-
likely delegations of the legislative power. Sometimes, Con-
gress passes broadly worded statutes seeking to resolve im-
portant policy questions in a field while leaving an agency
to work out the details of implementation. E.g., King v.
Burwell, 576 U. S. 473, 485–486 (2015). Later, the agency
may seek to exploit some gap, ambiguity, or doubtful ex-
pression in Congress’s statutes to assume responsibilities
far beyond its initial assignment. The major questions doc-
trine guards against this possi bility by recognizing that
Congress does not usually “hide elephants in mouseholes.”
Whitman v. American Trucking Assns., Inc., 531 U. S. 457,
468 (2001). In this way, the doctrine is “a vital check on
expansive and aggressive assertions of executive author-
ity.” United States Telecom Assn . v. FCC, 855 F. 3d 381,

GORSUCH, J., concurring
417 (CADC 2017) (Kavanaugh, J., dissenting from denial of
rehearing en banc); see also N. Richardson, Keeping Big
Cases From Making Bad Law: The Resurgent Major Ques-
tions Doctrine, 49 Conn. L. Rev. 355, 359 (2016).
Whichever the doctrine, the point is the same. Both serve
to prevent “government by bureaucracy supplanting gov –
ernment by the people.” A. Scalia, A Note on the Benzene
Case, American Enterprise Institute, J. on Govt. & Soc.,
July–Aug. 1980, p. 27. And both hold their lessons for to –
day’s case. On the one hand, OSHA claims the power to
issue a nationwide mandate on a major question but cannot
trace its authority to do so to any clear congressional man-
date. On the other hand, if the statutory subsection the
agency cites really did endow OSHA with the power it as –
serts, that law would likely constitute an unconstitutional
delegation of legislative authority. Under OSHA’s reading,
the law would afford it almost unlimited discretion—and
certainly impose no “specific restrictions” that “meaning-
fully constrai[n ]” the agency. Touby v. United States, 500
U. S. 160, 166–167 (1991). OSHA would become little more
than a “roving commission to inquire into evils and upon
discovery correct them.” A. L. A. Schechter Poultry Corp. v.
United States, 295 U. S. 495, 551 (1935) (Cardozo, J., con-
curring). Either way, the point is the same one Chief Jus-
tice Marshall made in 1825: There are some “important
subjects, which must be entirely regulated by the legisla-
ture itself,” and others “of le ss interest, in which a general
provision may be made, and powe r given to [others] to fill
up the details.” Wayman v. Southard, 10 Wheat. 1, 43
(1825). And on no one’s account does this mandate qualify
as some “detail.”
The question before us is not how to respond to the pan-
demic, but who holds the power to do so. The answer is
clear: Under the law as it stands today, that power rests

7 Cite as: 595 U. S. ____ (2022)
GORSUCH, J., concurring
with the States and Congress, not OSHA. In saying this
much, we do not impugn the intentions behind the agency’s
mandate. Instead, we only discharge our duty to enforce
the law’s demands when it comes to the question who may
govern the lives of 84 million Americans. Respecting those
demands may be trying in times of stress. But if this Court
were to abide them only in more tranquil conditions, decla-
rations of emergencies would never end and the liberties
our Constitution’s separation of powers seeks to preserve
would amount to little.

I look forward to your comments.

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