Administrative Agencies and the Supreme Court’s Appellate Jurisdiction
This Friday, the Supreme Court will hear oral argument in a set of cases challenging the Occupational Safety and Health Administration’s decision to issue an “emergency temporary standard” (“ETS”) requiring, with some exceptions, either mandatory COVID-19 vaccination or masking and testing by employers with 100 or more employees. The ETS Litigation presents significant questions of statutory interpretation and administrative law. I won’t address the issues at the heart of the cases in this blog post, but rather an interesting argument related to the Supreme Court’s appellate jurisdiction advanced on pages 85-86 of the Solicitor General’s brief. While that issue may not play a significant role in this week’s oral argument, it’s of interest to me—and maybe, just maybe, it might be of interest to a handful of readers of this blog.
In a nutshell, the Solicitor General’s argument concerns how Marbury v. Madison applies to Supreme Court consideration of agency action reviewed before the judgment of a lower court of appeals. The issue lies at the junction of Article III, the practice of certiorari before judgment, the appropriate standard of review, and administrative law.