WASHINGTON – The Supreme Court has sought to rein in what it sees as executive branch regulatory overreach, but has declined to rule on whether Congress violated the Constitution by giving federal agencies the power to set workplace safety rules.
The court rejected a challenge to the Occupational Safety and Health Administration brought by an Ohio-based general contractor and supported by some businesses, conservative groups and Republican attorneys general.
The federal agency survived challenges to its rule-making authority in 1978 and 2011.
But the challengers had hoped to find a receptive audience in the Supreme Court’s conservative supermajority, which has a history of reining in what it sees as executive branch regulatory overreach.
According to a brief filed in support of the challenge by the conservative Cato Institute, most of the court’s conservatives have expressed an interest in reconsidering how to apply the principle that Congress cannot delegate legislative power to other branches of government..
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Justice Clarence Thomas made the same point in his dissent on Tuesday.
“If this broad grant of authority does not confer undue legislative power on government agencies, it is difficult to imagine what does,” he wrote.
But only one other justice, Justice Neil Gorsuch, has indicated he wants to take on the case, and four votes are needed to grant an appeal.
Allstates Refractory Contractors, the plaintiff in the OSHA lawsuit, was represented by Don McGahn, who was former President Donald Trump’s first White House counsel and played a key role in Supreme Court nominations.
The Occupational Safety and Health Act of 1970 was used by the Department of Labor to set safety standards to protect workers from injuries such as falls, fire, electric shock, impact with foreign objects, choking, and chemical burns.
Catwalk support falls, injuring worker: $5,967 fine
In 2019, OSHA fined Allstates after a catwalk support fell and injured a construction worker. Allstates agreed to pay a $5,967 fine but then sued OSHA, arguing that Congress improperly gave OSHA the authority to set safety regulations for nearly every company in the United States.
“If ever there was a case in which the Supreme Court should uphold the principle that important rules affecting the American people must be written by Congress, not by government agencies, it is this one,” Justice McGahn told the court.
The Cincinnati-based U.S. 6th Circuit Court of Appeals disagreed.
Richard Nixon signs the Workplace Safety Act
Last year, the panel ruled 2-1 that a 1970 law signed by then-President Richard Nixon gave OSHA sufficient direction and also placed limits on its authority.
“Congress has given the Occupational Safety and Health Administration significant power to oversee large parts of the economy, but the discretion granted by the OSH Act does not approach the line where the scope of that authority is too great for the standards imposed,” Circuit Judge Richard Griffin wrote.
Circuit Judge John Nalbandian, a Trump appointee, dissented.
“Near-unlimited discretion”?
Nalbandian said Congress gave the Labor Department “almost unlimited discretion.”
The plaintiffs argued that even if they were successful in their lawsuit, most of OSHA’s regulations would not be affected because they are backed by other rulemaking authority.
They also stressed that they were only challenging the permanent safety standards, not the health standards, as Congress has placed further restrictions on health rules.
But the Department of Labor said some safety standards aimed at preventing direct physical harm would be lowered, returning to the patchwork of federal and state regulations that existed before the Occupational Safety and Health Act.
The ministry says there has been a significant drop in workplace injuries since the law was passed.
Biden administration lawyers said opponents want to overturn a nearly century-old approach to determining how much power Congress can hand over to agencies and adopt new standards “without identifiable specifics or benchmarks.”
But the American Farmers Association Federation, which filed a brief supporting the challenge along with several other business groups, argued that Congress should stop delegating the task to the Department of Labor and instead set specific safety standards that lawmakers deem necessary.
“The judicial path that has watered down the nondelegation test for decades is inconsistent with the exclusive reservation of lawmaking power to Congress and the role of the people as the ultimate source of that lawmaking power,” the groups wrote in their appeal to the court.
