Chapter 6: Are the OSHAct and the MSHAct constitutional? What are their constitutional limitations? On their ability to issue standards? On the independence of OSHRC and MSHRC?

Is OSHA constitutional? On its face? As applied?

In his dissent to the Sixth Circuit denial of rehearing en banc in In Re: MCP No. 165, Occupational Safety and Health Administration, Interim Final Rule: Covid 19 Vaccination and Testing v. U.S Department of Labor, 20 F.4th 264 (6th Cir. 2021), Chief Judge Sutton would have ruled that OSHA could not legally issue the vaccine and test rule for a variety of reasons, and then wrote:

[W]e need not address several serious constitutional claims raised by the challengers. Among others, there are at least these three that would need to be addressed before the emergency rule could be enforced. One, does this regulation of non-commercial inactivity—a requirement that the unvaccinated get shots or weekly tests—exceed Congress's Commerce Clause power? See Nat'l Fed. of Ind. Bus. v. Sebelius, 567 U.S. 519, 550–52, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012); infra at 285-86 (Bush, J., dissenting); BST Holdings, 17 F.4th at 619 (Duncan, J., concurring). Two, if we accepted the Secretary's sweeping reading of the Act—permitting him to regulate any substance, whether unique to work or not, so long as the Secretary finds it dangerous—would that amount to an unconstitutional delegation of power? See Gundy v. United States, ––– U.S. ––––, 139 S. Ct. 2116, 2123, 204 L.Ed.2d 522 (2019); id. at 2135–37 (Gorsuch, J., dissenting). Compare Indus. Union Dep't, 448 U.S. at 645, 100 S.Ct. 2844 (plurality opinion) (avoiding this constitutional question by construing the statute to narrow OSHA's authority), with id. at 687, 100 S.Ct. 2844 (Rehnquist, J., concurring in the judgment) (finding an unconstitutional delegation because “[i]t is difficult to imagine a more obvious example of Congress simply avoiding a choice which was both fundamental for purposes of the statute and yet politically so divisive that the necessary decision or compromise was difficult, if not impossible”). Three, does compelling faith-sensitive employers to administer these mandates violate the Free Exercise Clause or the Religious Freedom Restoration Act by interfering with their employment decisions or religious mission? See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 719–20, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014); Our Lady of Guadalupe Sch. v. Morrissey-Berru, –– – U.S. ––––, 140 S. Ct. 2049, 2060–61, 207 L.Ed.2d 870 (2020). Because our interpretation of the relevant statutes avoids these constitutional claims and any others, we need not address them. See United States v. Erpenbeck, 682 F.3d 472, 476 (6th Cir. 2012). By contrast, anyone who takes the view that the Fifth Circuit's stay should be lifted must come to grips with each of the statutory imperatives, each of the clear statement requirements, and all of the constitutional claims.

Read (or reread) the following:

Cass Sunstein, Is OSHA Unconstitutional? 94 Va. L. Rev. 1407 (Oct. 2008)
Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin.,142 S. Ct. 661 (2022) – pay particular attention to Justice Gorsuch’s dissent
Allstates Refractory Contractors, LLC v. Su, 79 F.4th 755 (6th Cir. 2023):

With regard to the further litigation of the Allstates Refarctory Contractors case, note the following: Allstates Refractory's petition for cert was denied. Allstates Refractory Contractors, LLC v. Su, 603 U.S. ---- (U.S., 2024). But Justices Gorsuch and Thomas would have granted the petition. In his dissent to the denial of cert, Justice Thomas wrote:

The Occupational Safety and Health Act may be the broadest delegation of power to an administrative agency found in the United States Code. See C. Sunstein, Is OSHA Unconstitutional? 94 Va. L. Rev. 1407, 1448 (2008) (“No other federal regulatory statute confers so much discretion on federal administrators, at least in any area with such broad scope”). If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would. It would be no less objectionable if Congress gave the Internal Revenue Service authority to impose any tax on a particular person that it deems “appropriate,” and I doubt any jurist would sustain such a delegation.

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Questions:

What arguments can you muster for the constitutionality of the OSHAct? Against its constitutionality? Would your arguments apply to the entire Act, or only subset(s)? Be prepared to discuss both sides of this, with specific reference to provisions of the Act.
Would your arguments be different for the OSHAct and the MSHAct? Why or why not? In thinking about this, remember the difference in the political and emotional reaction to mining hazards in Holden v. Hardy, supra Chapter 1.
In 2024, the issue of the nondelegation doctrine was before the Supreme Court. If you are reading these materials in 2025 or thereafter, be sure to follow the development of the doctrine as you prepare your thinking regarding the OSHAct. Cases are currently pending in the D.C. Circuit and elsewhere that raised the theories of delegration of powers, unitary executive, and the decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (U.S. 2024) overruling Chevron, U.S.A. v. Natural Resources Devense Council, In., 467 U.S. 837 (1984).Be prepared to look up what is happening in these cases, to to think about these theories in the context of these agencies.

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