Amicus Brief: Allstate Refractory Contractors v. Su

Congress gave the Occupational Safety and Health Administration (OSHA) the power to write permanent safety standards for virtually every business in America. In 2021, Allstate Refractory Contractors filed a lawsuit challenging this delegation of legislative authority. The district court granted summary judgment in OSHA’s favor, finding that the permanent-safety-standard delegation fell within the Court’s “intelligible principle” precedents. A divided Sixth Circuit panel affirmed. Judges Deborah Cook and Richard Griffin held that OSHA’s grant of authority fell “comfortably” within the delegations that this Court has already sanctioned. Judge John Nalbandian dissented, finding an “unconstitutional delegation of legislative power.” Both the majority and dissent agreed that this rulemaking authority, which imposes billions of dollars of costs each year, tasks OSHA with resolving “important choices of social policy,” as then-Justice Rehnquist put it in a 1980 concurrence. 

The government has never contended otherwise, and the sole statutory limit on this sweeping power over major policy questions is that these standards must, in OSHA’s view, be “reasonably necessary or appropriate” for a “safe” workplace. The challengers have now filed a petition for Supreme Court review, asking the justices to answer precisely that question: whether Congress’s delegation of authority to write “reasonably necessary or appropriate” workplace-safety standards violates Article I.

MI has joined the Buckeye Institute on an amicus brief supporting that petition, which focuses on alternative laws and other mechanisms that protect worker safety. That is, if the Court strikes down part of OSHA’s regulatory scheme, employees will still be protected through other government and nongovernmental means, including federal and state regulations. Moreover, OSHA itself has not significantly improved worker safety, while coming at high economic and constitutional cost. In other words, if the Supreme Court finds the OSHA safety regulations to be a violation of the nondelegation doctrine, it will not endanger worker safety while Congress fixes its statute. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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