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Workplace Safety and Health News Alert

OSHA Survives Constitutional Challenge to Its Authority

September 8, 2023

By: Benjamin J. Wilson

On August 23, 2023, a divided Sixth Circuit concluded that Congress’s delegation of authority to the Occupational Safety and Health Administration (“OSHA”) to set workplace-safety standards was constitutional and not violative of the nondelegation doctrine. In Allstates Refractory Contractors, LLC v. Su, the court reasoned that Congress’s delegation provided an “intelligible principle” that satisfied the nondelegation doctrine.

What is the nondelegation doctrine? The Constitution vests “[a]ll legislative powers . . . in a Congress of the United States.” U.S. Const. art. I, § 1. Accordingly, the Constitution prohibits the delegation of legislative powers and, as the Sixth Circuit noted, is “rooted in the principle of separation of powers that underlies our tripartite system of Government.” Yet, this prohibition does not prevent Congress from “obtaining the assistance of its coordinate Branches.” Whether an act of Congress violates this tenant is determined by applying the “intelligible principle” test, which the Sixth Circuit identified as: “If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.” Consequently, the intelligible-principle test is satisfied “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

Importantly, the court recognized that the OSH Act authorizes the Secretary of Labor to set safety standards, a “standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” The “reasonably necessary or appropriate” standard, limited to what is “economically or technologically feasible” by the Supreme Court in a 1981 decision (Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 505–06 & n.25 (1981)), passed the “intelligible principle” test and was therefore constitutional.

Notably, Judge John Nalbandian, an appointee of former President Trump, issued a lengthy dissent in which he argued that the law granting OSHA’s authority requires no preliminary fact-finding by the agency before it takes action and provides no intelligible principle limiting how OSHA exercises its authority. Arguing that OSHA’s permanent standards provision vests “large power” in the Secretary of Labor, Judge Nalbandian reasoned:

How can we test what is appropriate given the broad field of delegated power? The simple answer: We can’t. That’s because Congress has not “made clear” whether any “boundaries of . . . authority” exist.

Finally worth noting is that Allstates argued that the “intelligible principle” test, in place for nearly a century, violated the original meaning of the Constitution. In support of this argument, Allstates pointed to sitting Justices on the Supreme Court who have suggested reconsidering the approach. The Sixth Circuit panel rejected this argument, stating that it was bound by that test so long as it remained “good law.”

In short, OSHA’s authority to implement safety standards remains constitutional and does not violate the nondelegation doctrine. To stay up to date on workplace safety and health developments, please contact a member of the Jackson Kelly Workplace Safety and Health Team.


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