The Legal Basis For U.S. Federal Public Access Mandates by Eric Harbeson :: SSRN

Abstract:  Recent changes to the U.S. Federal public access policies direct grantmaking agencies to require immediate public access to grant-funded, peer-reviewed research. The previous policy limited the public access policies to only the largest grantmaking agencies. The new policy eliminated a previously-optional 12-month embargo. The changes have raised questions as to the legal foundations of the public access policy, as well as use of the Federal Purpose License as a tool 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 the scope of-a valid Congressional delegation of authority, and must be actions that Congress itself is constitutionally permitted to take. Congress's constitutional power to provide grants for research and development is examined under both the Spending and Progress clauses, each of which provides 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 expresslyand permissibly-delegated power and obligation to create the prototype of the public access policy to the National Institutes of Health, and subsequent application of the policy to the rest of the grant-making agencies is strongly supported by principles of implicit delegation, and were established through appropriate rulemaking. Though the recent case of Loper Bright Enterprises v. Raimondo may require agencies to satisfy a somewhat higher burden when defending their actions, the Supreme Court's abandonment of the Chevron doctrine does nothing to change the permissibility of the public access policies or the use of the Federal Purpose License.