The Supreme Court rightfully barred the Biden administration’s use of the Occupational Health and Safety Act (OSHA) to implement a vaccine mandate on all companies with 100 or more employees. But it is equally important to understand how the Biden administration was able to implement the mandate in the first place. 

The dirty little secret is that most law-making occurs through federal regulations, not statutes passed by Congress. The vaccine mandate is just one example. As the Supreme Court noted in Biden v. Missouri, Congress never passed a law requiring employers to implement the vaccine mandate. Instead, it was imposed through a regulation issued by OSHA, which had the ability to issue the regulation because of a cop-out by Congress. For years, Congress has passed legislation that is vague and general in its intent: Congress then directs the appropriate federal agencies to fill in the details of the legislation by issuing regulations consistent with the statute.

OSHA is part of an alphabet soup of federal agencies that do this. There are dozens of such agencies too numerous to list. Well-known ones include the FDA, SEC, NLRB, EPA, and the DOL. Taken together, these agencies are known as the administrative state, and they wield tremendous power over most private companies and even individual conduct. The mandate that masks be worn in airports and on planes? That too comes courtesy of the administrative state (the FAA, to be exact).

Regulations issued by administrative agencies are found in the Code of Federal Regulations (the CFR for short). Currently, there are over 175,000 pages in the CFR. If you stacked them end on end, they would be nearly seven stories high, about the size of an average apartment building. If you started reading the CFR today and read it 24 hours a day, it would take you more than half a year to finish.  

One of the principal problems with federal regulations is that none were written by anyone accountable to the voters. Instead, Congress has directed unelected bureaucrats, most of them career federal employees, to write and issue regulations that are — in their view — consistent with the law Congress passed. Worse, federal courts defer to these agencies’ interpretations of the federal statutes that enable them to issue their regulations. Indeed, the Sixth Circuit Court of Appeals initially upheld the vaccine mandate for this reason. 

One of the principal problems with federal regulations is that none were written by anyone accountable to the voters.

What this means is that once a regulation is issued, it becomes almost written in stone. Even more egregious is that certain agencies, like the NLRB and SEC, act as miniature banana republics. They write the regulations, prosecute people for violating them, and then try the case before a judge employed by the agency.

Luckily, there is a legal movement to reign in the administrative state. Within the conservative legal community, there is almost universal agreement that the administrative state is too large, too powerful, and contrary to the Constitution. After all, courts, not federal agencies, should determine the meaning of federal statutes passed by Congress. And courts, not federal agencies, should determine whether a business or individual has violated a law. It is the one issue that unites the so-called conservative bloc of the Supreme Court.

In recent terms, the Supreme Court has started to chip away at the administrative state; federal appeals courts have as well. The Supreme Court’s decision against OSHA’s vaccine mandate is another blow to it. There are also two cases currently before the court that could further erode agency powers. Voters unhappy with the power of federal agencies, however, do not have to wait for the Supreme Court to deal a death blow to it. They should demand elected officials pass legislation that reigns in the administrative state once and for all. 

Wally Zimolong is a conservative attorney in Pennsylvania. He has acted as lead trial counsel in hundreds of cases in federal and state courts and before administrative agencies, including numerous public policy and election-related cases. Examples of his work in these areas can be found at www.republican.law.

One thought on “Wally Zimolong: The Supreme Court slows the spread of the administrative state”

  1. Wally Zimolong is absolutely correct when he says: “The dirty little secret is that most law-making occurs through federal regulations, not statutes passed by Congress.” I submit that it is even worse than that. Consider the case of Elizabeth Blackwell Health Ctr. v. Knoll in the 3rd Circuit. What disturbs me is that Alito (who is now on the Supreme Court) went along with Cowen. In this case a federal bureaucrat, who wasn’t a lawyer, interpreted a statute, and the Circuit Court, which should have interpreted the statute, deferred to her interpretation. Deferring is not the same as agreeing.

    Before: COWEN, NYGAARD and ALITO, Circuit Judges.

    NYGAARD, Circuit Judge, dissenting.

    Today, the majority holds that, by the simple expedient of writing a letter, a sub-cabinet-level federal bureaucrat can preempt the statutory enactment of an elected state legislature. It bases its holding on the principle of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and later cases. Because I believe that what the Secretary would have us give her is not deference due, but rather deference run amok, I reach a different result than the majority, and must dissent.

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