The Legal Basis For U.S. Federal Public Access Mandates

Recent changes to the U.S. Federal public access policies direct grantmaking agencies torequire immediate public access to grant-funded, peer-reviewed research. The previous policylimited the public access policies to only the largest grantmaking agencies. The new policyeliminated a previously-optional 12-month embargo. The changes have raised questions as to thelegal foundations of the public access policy, as well as use of the Federal Purpose License as atool for achieving the policy’s aims. This paper argues both are legally permissible.For Federal agencies to act permissibly, their actions must be grounded in—and within thescope of—a valid Congressional delegation of authority, and must be actions that Congress itselfis constitutionally permitted to take. Congress’s constitutional power to provide grants for researchand development is examined under both the Spending and Progress clauses, each of whichprovides strong support. Though the power to place conditions on grant funding is not unlimited,it is broad enough to support public access policies under the Dole factors. Congress expressly—and permissibly—delegated power and obligation to create the prototype of the public accesspolicy to the National Institutes of Health, and subsequent application of the policy to the rest ofthe grant-making agencies is strongly supported by principles of implicit delegation, and wereestablished through appropriate rulemaking. Though the recent case of Loper Bright Enterprisesv. Raimondo may require agencies to satisfy a somewhat higher burden when defending theiractions, the Supreme Court’s abandonment of the Chevron doctrine does nothing to change thepermissibility of the public access policies or the use of the Federal Purpose License.