WASHINGTON – It’s long been a conservative dream: shrinking the federal government. And on Friday, part of the dream came true: the Supreme Court tossed a 40-year principle that boosted the power of government regulators on environmental, labor and other laws.
Could the federal agency that sets workplace safety rules be the next target?
The Supreme Court may decide this week whether it will hear a challenge to the Occupational Safety and Health Administration.
The case, pushed by business and conservative groups, and by Republican attorneys general, argues Congress violated the Constitution more than 50 years ago when it gave a federal agency − OSHA − the power to regulate workplace safety and fine companies when they endanger their workers.
The federal agency survived challenges to its rulemaking authority in 1978 and 2011.
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But the latest case could find a receptive audience in this Supreme Court’s conservative supermajority, which has reined in what it views as regulatory overreach by executive branch agencies.
Most of the court’s conservatives have shown an interest in revisiting how to apply the principle that Congress cannot delegate its legislative powers to other parts of government, according to a brief filed by the conservative Cato Institute in support of the challenge.
The challengers say OSHA may be the most egregious example of an open-ended delegation of authority from Congress to a federal agency.
But they’re hoping for a ruling that will apply not just to workplace rules, but in all other areas as well.
The challenger in the OSHA case, Allstates Refractory Contractors, is represented by Don McGahn, who was former President Donald Trump’s first White House counsel and played a top role in his Supreme Court nominations.
The Occupational Safety and Health Act of 1970 has been used by the Labor Department to set safety standards to protect workers from falls, fires, electric shock, being hit by foreign objects, asphyxiation, chemical burns and more.
A falling catwalk brace injures a worker: The penalty is $5,967
In 2019, OSHA issued a penalty against Allstates after a catwalk brace fell and injured a construction worker. Allstates agreed to pay a penalty of $5,967 but then took OSHA to court, arguing that Congress improperly told the agency it could set safety rules for virtually every business in America.
“If there is any case in which the Court should stand up for the principle that Congress, not agencies, must write major rules affecting the American people, this is it,” McGahn told the Supreme Court.
The Cincinnati-based 6th U.S. Circuit Court of Appeals disagreed.
A workplace safety law signed by Richard Nixon
A divided panel ruled 2-1 last year that the 1970 law, signed by then-President Richard Nixon, gave OSHA sufficient direction and also set limits on its authority.
“So while Congress has conferred significant power to OSHA to oversee large sections of our economy, the discretion conferred by the OSH Act nowhere near approaches the line where the scope of its power is too great for the standard imposed,” Circuit Judge Richard Griffin wrote.
Circuit Judge John Nalbandian, who was appointed by Trump, disagreed.
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‘Nearly unfettered discretion’?
Nalbandian said Congress gave the Labor Department “nearly unfettered discretion.”
The challengers contend that if they win, most of OSHA’s regulations would not be affected because they are backed by other sources of rulemaking authority.
They also emphasize that they’re challenging only permanent safety – not health – standards because Congress has placed more limits on health rules.
But the Labor Department says several safety standards − those intended to prevent immediate physical harm − would fall, returning the nation to the patchwork of federal and state rules that existed before the Occupational Safety and Health Act.
Since the law was passed, workplace injuries have dropped significantly, according to the department.
The Biden administration’s lawyers say the challengers want to upend the approach that’s been used for nearly a century to decide how much authority Congress can delegate to agencies and adopt a new test “with no identifiable concrete content or parameters.”
But the American Farm Bureau Federation, which filed a brief with several other business groups in support of the challenge, said Congress must stop delegating its job to the Labor Department and set whatever specific safety standards lawmakers think are necessary.
“The decadeslong judicial path towards a watered-down nondelegation test,” the groups told the court, “is inconsistent with the exclusive reservation of the legislative power to Congress and with the role of the people as the ultimate source of that legislative power.”
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