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Noah Feldman

Gorsuch v. the Administrative State Is Really Heating Up

Three Supreme Court conservatives have signaled that they want to go beyond barring vaccine mandates to erecting sweeping constitutional barriers against federal regulatory activity.

Some of the justices seem to agree.

Some of the justices seem to agree.

Photographer: Al Drago/Bloomberg

In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government.

The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.