Allstates Refractory Contractors, LLC v. Walsh
Under the Occupational Safety and Health Act, the Secretary of Labor and the Occupational Safety and Health Administration (OSHA) have the power to set workplace safety standards. In 2019, general contractor Allstates Refractory Contractors, LLC was cited by OSHA for violating those safety standards. The company later filed a lawsuit against OSHA, arguing that the agency’s power to establish workplace standards is unconstitutionally broad, in violation of the “nondelegation doctrine.”
The United States District Court for the Northern District of Ohio dismissed Allstates’s suit, applying longstanding Supreme Court precedent that permits Congress to make broad delegations to agencies. The company appealed to the Sixth Circuit, and in January 2023 CAC filed an amici curiae brief on behalf of law professors Julian Davis Mortenson and Nicholas Bagley in support of the Labor Secretary.
Our brief explains that the Constitution, as originally understood, was not meant to limit legislative delegations. Allstates claims that the “original meaning of Article I” supports a more stringent limit on Congress’s power to delegate than is reflected in modern Supreme Court precedent—which requires only that Congress provide an “intelligible principle” to guide an agency’s formulation of policy. But as we demonstrate, Article I’s original meaning provides no basis for any limit on legislative delegations of authority, much less the strict new limits that Allstates advocates.
In the Founding era, legislative delegations of rulemaking authority were a familiar and uncontroversial feature of British and American law. Parliament had a long tradition of delegating broad discretionary authority to the king and other agents, and in the years after independence, delegations were likewise pervasive in America in state governments and under the Articles of Confederation.
As we further explain, the Constitution was not meant to prevent Congress from delegating. Although the Constitution divides power among three branches and assigns all “legislative powers” to Congress, nothing about that division limits Congress’s power to delegate rulemaking authority to agencies, so long as Congress retains ultimate control over the legislative process. Furthermore, the debates surrounding the Constitution’s drafting and ratification betray no concern about this type of legislative delegation.
Congressional practice in the early Republic refutes any notion that the Constitution was originally understood to prohibit delegation. As the Supreme Court has noted, early legislation is “strong evidence of the original meaning of the Constitution,” and the first Congresses routinely delegated major policy questions to the executive branch—granting sweeping policymaking authority over matters of the highest economic and political significance in statute after statute, often with little or no guidance.
Finally, our brief shows that modern proposals for strict delegation limits hinge on principles with no historical grounding. Allstates, for example, echoes recent claims that delegation becomes problematic if it involves regulating “private conduct” or resolving “major policy questions.” But in the Founding era, no one drew such distinctions, much less invoked them to justify early delegations. Instead, Congress repeatedly delegated broad authority to fashion rules governing private conduct during the nation’s first decade, yet these laws never provoked any comment that power over “private conduct” could not be delegated.
In sum, the Constitution’s original meaning offers no justification for limiting Congress’s power to delegate as Allstates and others have urged.
January 30, 2023
CAC files amici brief on behalf of law professors Julian Davis Mortenson and Nicholas BagleyAllstates Amicus Brief