Under constitutional law, the nondelegation doctrine prevents Congress from adopting laws that give administrative agencies overly broad discretion to adopt regulations that usurp its legislative authority. Recently, the doctrine has emerged among conservative legal scholars as a way to curtail safety, environmental, and other rules that impact individuals and businesses. Last week, in a 2-1 decision, a Sixth Circuit Court of Appeals panel rejected arguments that the Occupational Safety and Health Act violates the nondelegation doctrine.

In Allstates Refractory Contractors LLC v. Su, the employer filed suit alleging that OSHA safety standards applicable to its business are unconstitutional. The employer argued that the federal OSH Act impermissibly grants OSHA unfettered authority to adopt safety regulations that impact wide swaths of the economy. The company sought an order that would basically put OSHA out of business unless Congress amends the act to specify the safety concerns that could be regulated.

The Sixth Circuit majority rejected this argument, finding long-standing precedent granting Congress the ability to provide wide discretion to federal administrative agencies. In this case, Congress recognized the range of health and safety hazards facing American workers and that the grant of authority to OSHA reasonably addresses these hazards. The federal OSH Act contains procedures and limits for OSHA to adopt safety standards and therefore is not a delegation of legislative authority.

The dissenting judge rejected Congress’ authority to delegate broad rulemaking authority to OSHA or other federal administrative agencies. He concluded that the OSH Act should be declared unconstitutional and, by implication, a wide range of other statutes that form the basis of a large portion of federal regulatory authority.

If a Supreme Court majority were to adopt the dissenting position in this case, it would result in a wholesale removal of federal regulatory authority. Congress would be required to start over on a range of federal laws that delegate rulemaking authority and designate the specific areas that the agencies can regulate. Given that policy concerns change over time, Congress would need to amend the enabling legislation to address safety or other hazards that may not have existed at the time the original laws were adopted.

[View source.]