Why Conservative Attacks on Federal Agencies Are at Odds with the Constitution
Conservatives and business interests have long sought to weaken the federal agencies that help keep our air and water clean, ensure safe workplaces, and stand up for workers and consumers. These attacks escalated during the Trump administration, as a key advisor called for the “deconstruction of the administrative state,” and White House Counsel Donald McGahn put judges’ views on reducing agency power front and center when selecting nominees for the federal bench. And these attacks continue today in the courts. But there’s one big stumbling block that should help stop conservatives from succeeding in their attacks: the original meaning of the Constitution.
This war on agencies has been a multi-front effort, with advocates targeting issues such as for-cause removal protections for agency leaders, how agencies are funded, and the deference owed to agency interpretations of law. But the white whale of this effort has been a dramatic change to the Supreme Court’s nondelegation doctrine, which holds that Congress may delegate power to agencies so long as it supplies “an intelligible principle to guide the delegee’s use of discretion.” This requirement is “not demanding” — Congress can tell an agency to act on a specific topic as “public interest” requires — and the Supreme Court has only twice used this doctrine to strike down a law, both times in 1935.
This past Term, many feared (or hoped) that the Supreme Court would use a challenge to an Obama-era climate rule in a case called West Virginia v. EPA to dramatically strengthen the nondelegation doctrine. While the Court instead ruled against the EPA’s Clean Power Plan under the “major questions doctrine,” that still hasn’t stopped litigants from trying to invoke the nondelegation doctrine to overrule agency action on issues as varied as the FCC’s expansion of telecommunications access to the EPA’s issuance of health advisories on PFAS chemicals in drinking water.
And in one notable case, former White House Counsel McGahn, now back in private practice, is trying to convince the judiciary to go further in taking down the administrative state. McGahn and his Jones Day colleagues are representing Allstates Refractory Contractors in its efforts to prohibit the Occupational Safety and Health Administration (OSHA) — the agency that Congress created “[t]o assure safe and healthful working conditions for working men and women” — from issuing and enforcing permanent workplace-safety standards. What OSHA does matters. In the fifty years since its creation, U.S. worker deaths have dropped from 38 per day to 13 even with our growing population. Workplace injuries and illnesses per worker in 2020 were just a quarter of what they were in 1972.
But if successful, this lawsuit would hinder OSHA’s efforts to protect workers. In short, the company claims that Congress violated the Constitution when it authorized the Secretary of Labor in 1970 to issue workplace standards “reasonably necessary or appropriate to provide safe . . . employment.” Perhaps recognizing that the Supreme Court’s intelligible-principle standard permits broad delegations, Allstates is also asking the lower court to distort the Supreme Court’s precedent in this area, arguing that the original meaning of the Constitution demands stricter limits on delegation.
If the Supreme Court’s current standard is ultimately made stricter, the implications for workers could extend beyond workplace safety. Opponents of a range of worker protections would likely bring challenges relying on those new limits. For example, some have predicted that a more aggressive nondelegation doctrine could play a role in challenges to the Department of Labor’s overtime rule governing the scope of the Fair Labor Standards Act’s “executive, administrative, or professional” exemption. And if a stronger doctrine increased scrutiny on agencies “adopt[ing] generally applicable rules of conduct governing future actions by private persons,” some employers may seek to limit the power of agencies like the National Labor Relations Board and Equal Employment Opportunity Commission, too.
Fortunately, there’s a big problem for those trying to make it more difficult for Congress to delegate to agencies: constitutional text and history instead support the broad delegation of powers by Congress. As we at the Constitutional Accountability Center explained in an amicus curiae brief recently filed in the case on behalf of law professors Julian Davis Mortenson and Nicholas Bagley, the Founders had no qualms whatsoever about delegating major policymaking authority to the executive branch.
Indeed, at the time of our nation’s founding, legislative delegations were not controversial. Early state governments followed Parliament’s long historical practice of delegation: for example, Virginia delegated the power to “maintain fair prices” to its governor and Council of State. The Constitution did not alter that consensus. Its text is notably “silent” on delegation, and its express restrictions on Congress’s legislative authority in Article I caution against inferring additional unwritten restrictions.
The Supreme Court has often observed that early congressional legislation provides “strong evidence of the original meaning of the Constitution.” And this early practice proves fatal to efforts to impose stronger nondelegation rules. For example, the First Congress gave the president unguided discretion to set requirements for a license required to trade with American Indian tribes. President Washington used this power to set generally applicable rules on who could trade, what could be traded, and where. This same Congress also delegated authority to address the national debt with few restrictions, authorizing the president to restructure massive amounts of foreign debt and authorizing a commission to refinance domestic debt.
The list of major early delegations of powers goes on and on. Congress empowered the Treasury Secretary to “effectively rewrite the statutory penalties for customs violations.” The President was granted authority to impose embargoes on ships during congressional recesses when “in his opinion, the public safety shall so require” and to aid in the implementation of quarantines “in such manner as may to him appear necessary.” Congress even empowered officials to decide on how to “revise, adjust, and vary” real estate valuations for the first direct tax “as shall appear to be just and equitable,” delegating the politically fraught question of how to appraise property values for a tax that affected every property holder in the nation.
If the original meaning of the Constitution barred delegations of policymaking authority, you would think that someone would have said as much. But references to limits on delegation before the Constitution’s ratification were scarce, and they tended to address situations very different from a congressional delegation to an agency. No one appears to have suggested that agency delegations threatened liberty or the separation of powers. And once the new Congress started delegating, the vast majority of the bills discussed above did not trigger any delegation concerns. The occasional objections did not reflect any consistent theory of delegation limits, and they repeatedly failed.
That is all to say that Congress was in good company when it tasked the Labor Secretary and OSHA with helping to protect workers by enacting permanent safety standards. The Constitution gives Congress wide leeway to address the challenges of the day in the manner it deems best, including by delegating policymaking authority, and it provides no justification to strike down OSHA’s authority and reverse the nation’s progress on safe workplaces. Despite claims to the contrary, our nation’s lawmakers have used delegations like this from the very beginning.