From Gorsuch’s concurrence:
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 sovereign 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 ROBERTS, 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 with 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) (GORSUCH, J., dis- senting) (slip op., at 20).
OSHA’s mandate fails that doctrine’s test