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Recently, the Sixth Circuit Court of Appeals (which has jurisdiction over the district courts in Kentucky, Tennessee, Michigan, and Ohio) addressed the following question: “whether Congress’s delegation to [OSHA] to set workplace-safety standards is constitutional.”¹ The court noted that since the passage of the Occupational Safety and Health Act (“OSH” or “the Act”) in 1970, challenges to the law’s constitutionality have been repeatedly rejected.² Plaintiff Allstates Refractory Contractors (“Allstates”), a general contractor that falls under the oversight of OSHA, argued that OSHA’s authority to set “‘reasonably necessary or appropriate’” work-place standards was unconstitutional.³ The district court rejected Allstates’ argument, and the Sixth Circuit, in a 2-1 opinion, agreed.⁴ This blog post will discuss the Sixth Circuit’s reasoning and explore the nondelegation doctrine of constitutional law.

At the district court and on appeal, Allstates argued that “because the only textual constraint on setting workplace-safety standards is that they be ‘reasonably necessary or appropriate’ . . . OSHA does not have the constitutional authority to set those standards” and that employers therefore did not have to comply with them.⁵ The district court (and the Sixth Circuit) concluded that the “‘reasonably necessary or appropriate’” standard satisfied the nondelegation doctrine because it provides an “‘intelligible principle,’” and the United States Supreme Court has upheld similar delegations on numerous occasions.⁶ As the Sixth Circuit explained, the nondelegation doctrine is “‘rooted in the principle of separation of powers that underlies our tripartite system of governance,’ the maintenance of which ‘manadate[s] that Congress generally cannot delegate its legislate power to another Branch.’”⁷ To determine if Congress has properly “obtained the assistance” from the other Branches for non-legislative duties, courts have established the “‘intelligible principle’” test.⁸ As the Supreme Court has stated, “‘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.’”⁹ This test “balances Congress’s need for flexibility with the Constitution’s prohibition on legislative delegation,” recognizing the complexities of a modern society.¹⁰ The “intelligible principle” test “is satisfied and the statute is constitutional ‘if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’”¹¹ This test requires an interpretation of the statute at issue, including its purpose, the instruction provided, and whether an agency’s discretion is sufficiently guided by the legislation.¹²

As the Sixth Circuit noted, the “Supreme Court, in examining nondelegation challenges, has almost uniformly upheld ‘delegations under standards phrased in sweeping terms.’”¹³ The Sixth Circuit provides an indepth discussion of the nondelegation doctrine and the “intelligible principle” test, noting that only on two occasions (both in 1935) has the Supreme Court found a violation of the nondelegation doctrine.¹⁴ The court explored the history of the Act and noted that the Act delineates the general policy behind it (to ensure safe working conditions), authorizes the Secretary of Labor to set standards, and sets forth the boundaries of the Secretary’s authority.¹⁵ The court observed that the Supreme Court has also construed 3 the “‘reasonably necessary or appropriate’” language of the Act and provided guidance. ¹⁶

Taking the statutory context and case law into consideration, the Sixth Circuit held that “the OSH Act’s ‘reasonably necessary or appropriate’ standard passes the ‘intelligible principle’ test and is therefore constitutional.”¹⁷ The court emphasized that the Act contains several purposes, significantly limits OSHA’s discretion, and requires the agency to act in response to safety issues.¹⁸ The court held that “a condition is ‘reasonably necessary or appropriate’ in the context of the OSH Act if it is something that OSHA can do to ameliorate or mitigate, but not necessarily eliminate, an unsafe condition.”¹⁹ The court rejected Allstates’ reliance on the two 1935 cases where the Supreme Court found violations of the nondelegation doctrine.²⁰ The Sixth Circuit concluded by reiterating that “the standard prescribed by the OSH Act” is “a constitutional delegation of authority” and affirmed the decision of the district court.²¹

For a real-world example, imagine that Kody owns a warehouse. If Kody fails to abide by the pertinent OSHA regulations and employee Janelle suffers a workplace injury, it is unlikely that Kody will be able to avoid paying a fine by arguing that OSHA did not have the authority to impose such a fine.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

¹ Allstates Refractory Contractors, LLC v. Su, et al., No. 23-3772 (6th Cir. Aug. 23, 2023), at *2, available at https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0194p-06.pdf (last visited Sept. 15, 2023).

² Id.

³ Id.

⁴ The Sixth Circuit noted that Allstates was fined $10,000 by OSHA in 2019 for a catwalk injury. Id., at *3.

⁵ Id.

⁶ Id. 2

⁷ Id., at *4 (quoting Mistretta v. U.S., 488 U.S. 361, 371-72 (1989)).

⁸ Id.

⁹ Id. (quoting J.W. Hampton, Jr., & Co. v. U.S., 276 U.S. 394, 409 (1928)).

¹⁰ Id.

¹¹ Id. (quoting Mistretta, 488 U.S. at 372-73 (other citation omitted)).

¹² Id., at *5.

¹³ Id. (quoting Loving v. U.S., 517 U.S. 748, 771 (1996)).

¹⁴ Id., at *6. In those cases, the statutes at issue did not provide limitations on the president’s authority or provide any guidance. Id.

¹⁵ Id., at *7-8.

¹⁶ Id., at *8.

¹⁷ Id., at *9.

¹⁸ Id.

¹⁹ Id., at *10.

²⁰ Id., at12-14.

²¹ Id., at *15.

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