BECAUSE SOMEONE HAS TO DEFEND THE SEPARATION:

In the 6-3 OSHA decision, Gorsuch wrote a separate concurrence with a separate purpose. He didn't just reject the claim by the administration of President Joe Biden that a workplace mandate could be imposed under OSHA's power to regulate "occupational" safety, as the majority did. He said something fundamental about the Constitution and what it allows Congress to do when allocating power to any administrative agency.

According to Gorsuch, the right question to ask, in considering whether an agency has power to do something, is not merely whether Congress has passed a statute that authorizes it. The right question is whether the Constitution allows Congress to delegate broad power at all.

The traditional Supreme Court answer to that question has two parts. First, the court said in 1928 that when Congress delegates power to an agency, it must articulate an "intelligible principle" to limit the agency's actions. Second, in a 1935 decision striking down a key part of President Franklin Roosevelt's New Deal, the court added, "Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."

For more than three-quarters of a century, the justices have interpreted their own words generously, to maximize the powers that Congress is allowed to give to the agencies that regulate the air we breathe, the water we drink and the safety of our workplaces, among many other functions. The court has treated almost any words used by Congress as satisfying the intelligible-principle requirement. And the justices have allowed Congress to delegate enormous lawmaking powers without saying that the delegation counted as an impermissible transfer of essential legislative functions.

Gorsuch, Alito and Thomas want to give new vitality and force to these two requirements, to scale back radically what Congress is constitutionally permitted to allow agencies to do. The key line of the Gorsuch opinion reads: "If the statutory subsection the agency cites really did endow OSHA with the power it asserts, that law would likely constitute an unconstitutional delegation of legislative authority."

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