Petition for Writ of Certiorari — Allstates Refractory Contractors, LLC, Petitioner v. Julie A. Su, Acting Secretary of Labor, et al.

Supreme Court briefJan 26, 2024

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No. 23-___

IN THE

Supreme Court of the United States

ALLSTATES REFRACTORY CONTRACTORS, LLC,

Petitioner,

JULIE A. SU, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR A WRIT OF CERTIORARI

DONALD F. MCGAHN II

BRETT A. SHUMATE

Counsel of Record

JOHN M. GORE

ANTHONY J. DICK

BRINTON LUCAS

HARRY S. GRAVER

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

bshumate@jonesday.com

Counsel for Petitioner

QUESTION PRESENTED

Congress gave the Occupational Safety and Health

Administration (OSHA) the power to write permanent

safety standards for virtually every business in

America. Both the majority and dissent below agreed

that this rulemaking authority, which imposes billions

of dollars of costs each year, tasks OSHA with resolving

“important choices of social policy.” Indus. Union Dep’t

v. Am. Petroleum Inst., 448 U.S. 607, 685 (1980)

(Rehnquist, J., concurring in the judgment). The

government has never contended otherwise. And the

sole statutory limit on this sweeping power over major

policy questions is that these standards must, in

OSHA’s view, be “reasonably necessary or appropriate”

for a “safe” workplace. 29 U.S.C. §§ 652(8), 655(b).

The question presented is:

Whether Congress’s delegation of authority to write

“reasonably necessary or appropriate” workplace-safety

standards violates Article I of the U.S. Constitution.

PARTIES TO THE PROCEEDING

Petitioner Allstates Refractory Contractors, LLC was

the plaintiff in the district court and appellant in the

court of appeals.

Respondents Julie A. Su, United States Department

of Labor, James Frederick, and the Occupational Safety

and Health Administration were defendants in the

district court and appellees in the court of appeals.

RULE 29.6 STATEMENT

Allstates Refractory Contractors, LLC, is a

corporation that has no parent corporation. Allstates is

not publicly held, and no publicly held corporation owns

10% or more of its stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RULE 29.6 STATEMENT .......................................... ii

TABLE OF AUTHORITIES ....................................... v

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .............................. 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE ................................... 4

REASONS FOR GRANTING THE PETITION....... 10

THE QUESTION PRESENTED IS

IMPORTANT. ..................................................... 10

Article I at Least Precludes

Congress From Delegating Major

Questions. ............................................ 11

Congress Delegated to OSHA the

Power Over a Major Policy

Question. ............................................. 15

The Major Questions Doctrine

Informs the Standard, But

Cannot Solve the Problem. ................. 17

II.

THIS CASE IS AN IDEAL VEHICLE. ................... 21

III.

THE DECISION BELOW IS WRONG. ................... 25

Section 655(b) Violates Article I. ........ 26

The Court of Appeals Erred in

Failing to Hold § 655(b)

Unconstitutional. ................................ 29

CONCLUSION ......................................................... 34

APPENDIX A: Opinion of the United States

Court of Appeals for the Sixth Circuit

(Aug. 23, 2023) ............................................... 1a

APPENDIX B: Memorandum Opinion by the

United States District Court for the

Northern District of Ohio (Sept. 2, 2022) ... 69a

APPENDIX C: Denial of Petition for Rehearing

by the United States Court of Appeals

for the Sixth Circuit (Dec. 20, 2023) .......... 83a

APPENDIX D: Statutory Appendix

U.S. Const. art. I, § 1 ................................... 85a

29 U.S.C. § 651 ............................................. 86a

29 U.S.C. § 652 ............................................. 89a

29 U.S.C. § 654 ............................................. 92a

29 U.S.C. § 655 ............................................. 93a

TABLE OF AUTHORITIES

Page(s)

CASES

A.L.A. Schechter Poultry Corp. v. United

States,

295 U.S. 495 (1935) ...... 4, 11, 13, 14, 16–18, 27, 28

Am. Textile Mfrs. Inst., Inc. v. Donovan,

452 U.S. 490 (1981) ................................................ 6

Biden v. Nebraska,

143 S. Ct. 2355 (2023) .................................... 13, 18

Blocksom & Co. v. Marshall,

582 F.2d 1122 (7th Cir. 1978) .............................. 23

City of Arlington v. FCC,

569 U.S. 290 (2013) ........................................ 20, 28

Consumers’ Research v. FCC,

88 F.4th 917 (11th Cir. 2023) ........................ 14, 23

Dep’t of Transp. v. Ass’n of Am. R.Rs.,

575 U.S. 43 (2015) .......................................... 12, 29

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) .............................................. 15

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .............................................. 17

Fulton v. City of Philadelphia,

141 S. Ct. 1868 (2021) .......................................... 22

Gundy v. United States,

139 S. Ct. 2116 (2019) .. 3, 11–13, 18, 25, 27–29, 33

Haaland v. Brackeen,

599 U.S. 255 (2023) .............................................. 21

In re AFL-CIO,

No. 20-1158, 2020 WL 3125324

(D.C. Cir. June 11, 2020) ..................................... 24

In re MCP No. 165,

20 F.4th 264 (6th Cir. 2021) ............................ 7, 16

In re Nat’l Nurses United,

47 F.4th 746 (D.C. Cir. 2022) ............................... 32

Indus. Union Dep’t v. Am. Petroleum Inst.,

448 U.S. 607 (1980) ..................... 3, 4, 6, 11–13, 17,

21–24, 26, 33

Int’l Union v. Chao,

361 F.3d 249 (3d Cir. 2004).................................. 32

Int’l Union v. OSHA,

938 F.2d 1310 (D.C. Cir. 1991) ........................ 5, 16

Michigan v. EPA,

576 U.S. 743 (2015) .............................................. 27

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 12

Nat’l Mar. Safety Ass’n v. OSHA,

649 F.3d 743 (D.C. Cir. 2011) ........................ 23, 26

NFIB v. OSHA,

595 U.S. 109 (2022) (per curiam) ... 4, 12, 16, 19, 24

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ........................................ 27, 28

Paul v. United States,

140 S. Ct. 342 (2019) ............... 3, 11–15, 17–19, 21,

22, 25, 26, 32–34

vii

SeaWorld of Fla., LLC v. Perez,

748 F.3d 1202 (D.C. Cir. 2014) .................. 2, 15, 16

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) .................................. 30

Touby v. United States,

500 U.S. 160 (1991) .............................................. 27

United States Telecom Ass’n. v. FCC,

855 F.3d 381 (D.C. Cir. 2017) .............................. 18

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .............................................. 17

Wayman v. Southard,

23 U.S. 1 (1825) .............................................. 10, 11

West Virginia v. EPA,

597 U.S. 697 (2022) ................ 13, 16, 17, 19, 25, 26

Whitman v. Am. Trucking Ass’ns, Inc.,

531 U.S. 457 (2001) ...................... 11–13, 26, 32, 33

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. art. I, § 1 ........................... 1, 10, 11, 24, 28

28 U.S.C. § 1254 .......................................................... 1

28 U.S.C. § 2461 note .................................................. 8

29 U.S.C. § 629 .......................................................... 31

29 U.S.C. § 651 ...................................... 1, 6, 15, 24, 30

29 U.S.C. § 652 ........................ 1, 2, 5–7, 15, 27, 30, 33

29 U.S.C. § 654 ............................................ 1, 7, 15, 24

29 U.S.C. § 655 ......................... 1, 2, 4–6, 9, 15, 22–24,

26, 29, 31–33

29 U.S.C. § 666 ...................................................... 8, 15

viii

29 U.S.C. § 667 .......................................................... 24

29 U.S.C. § 668 ............................................................ 7

OTHER AUTHORITIES

29 C.F.R. § 1910.132 .................................................... 9

29 C.F.R. § 1910.133 .................................................... 9

29 C.F.R. § 1910.135 .................................................... 9

29 C.F.R. § 1910.136 .................................................... 9

29 C.F.R. § 1910.137 .................................................... 9

29 C.F.R. § 1910.138 .................................................... 9

29 C.F.R. § 1910.140 .................................................... 9

29 C.F.R. § 1910.155 .................................................... 9

29 C.F.R. § 1910.156 .................................................... 9

29 C.F.R. § 1910.157 .................................................... 9

29 C.F.R. § 1910.158 .................................................... 9

29 C.F.R. § 1910.159 .................................................... 9

29 C.F.R. § 1910.160 .................................................... 9

29 C.F.R. § 1910.161 .................................................... 9

29 C.F.R. § 1910.162 .................................................... 9

29 C.F.R. § 1910.163 .................................................... 9

29 C.F.R. § 1910.164 .................................................... 9

29 C.F.R. § 1910.165 .................................................... 9

29 C.F.R. § 1975.4........................................................ 7

Nicole V. Crain & W. Mark Crain, The

Impact of Regulatory Costs on Small

Firms (2010) ........................................................... 8

Harvey S. James Jr., Estimating OSHA

Compliance Costs,

31 POLICY SCIENCES 297 (1998) ............................. 7

OSHA, Workplace Violence SBREFA,

Prevention of Workplace Violence in

Healthcare and Social Assistance,

SBREFA Materials for Review –

Issues Document and Preliminary

Interim Regulatory Flexibility

Analysis .................................................................. 8

A. Scalia, A Note on the Benzene Case,

AEI, 4 J. ON GOVT. & SOC. 25 (1980) ........ 12, 25, 33

Cass. R. Sunstein, Is OSHA

Unconstitutional?,

94 VA. L. REV. 1407 (2008) ....... 2, 16, 21, 24, 25, 33

U.S. Dep’t of Lab., OSHA, Industry

Profile for an OSHA Standard

Results ALL ............................................................ 8

U.S. Dep’t of Lab., OSHA, OSHA

Penalties ................................................................. 8

U.S. Dep’t of Lab., OSHA, State Plans ....................... 7

Ilan Wurman, Nondelegation at the

Founding, 130 YALE L.J. 1490 (2021).................. 13

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Sixth Circuit (Pet.App.1a) is reported at 79 F.4th

755. The opinion of the United States District Court for

the Northern District of Ohio (Pet.App.69a) is reported

at 625 F. Supp. 3d 676.

JURISDICTION

The Sixth Circuit issued its judgment on August 23,

2023, and denied both panel rehearing and rehearing

en banc on December 20, 2023. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The appendix reproduces Article I, § 1 of the U.S.

Constitution, and 29 U.S.C. §§ 651, 652, 654, 655.

INTRODUCTION

This case presents a question of exceptional

importance: Whether Congress’s delegation of

legislative authority over major policy questions

violates Article I. The statute at issue confers power on

the Executive Branch to enact “any occupational safety

… standard” that OSHA deems “appropriate.” 29

U.S.C. §§ 655(b), 652(8). Both the majority and dissent

below agreed—and the government never denied—that

this delegation “confer[s] significant power to OSHA to

oversee large sections of our economy” by making safety

rules for virtually every workplace. Pet.App.22a; see

Pet.App.41a, 63a-66a. Indeed, even some of the most

ardent defenders of the administrative state have

admitted this grant of authority is perhaps the most

extraordinary delegation of legislative power in the

U.S. Code today. “No other federal regulatory statute

confers so much discretion on federal administrators, at

least in any area with such broad scope, and it is not

difficult to distinguish [it] from statutes that the Court

has upheld.” Cass. R. Sunstein, Is OSHA

Unconstitutional?, 94 VA. L. REV. 1407, 1448 (2008).

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. Congress has empowered OSHA not only to enact

major occupational safety rules but also to enforce them

against “practically every business in the United

States,” Pet.App.63a, from manufacturers and

accounting firms, to the “sports and entertainment

industry,” SeaWorld of Fla., LLC v. Perez, 748 F.3d

1202, 1221 (D.C. Cir. 2014) (Kavanaugh., J.,

dissenting).

At the same time, Congress has given OSHA

virtually no instruction on how to use this vast

lawmaking authority. Instead, OSHA has “nearly

unfettered discretion” to make whatever workplace

safety rules it wants for almost every company in

America. Pet.App.24a. As Judge Nalbandian explained

in dissent, the Act puts one question to OSHA—“What

seems appropriate in workplaces around the nation?”—

and gives the agency far-reaching power to dictate

whatever its answer may be. Pet.App.56a. OSHA’s

unilateral view of what is “appropriate” is no “general

check” on its authority; it is no limit at all. Indus.

Union Dep’t v. Am. Petroleum Inst., 448 U.S. 607, 681

(1980) (Rehnquist, J., concurring in the judgment).

This delegation is as unconstitutional as it is

unparalleled among modern agencies. And it was

adopted precisely so Congress could avoid making the

“hard choices” innate to balancing worker safety with

industry costs—the sort of legislative choices the

Constitution requires Congress to make. Id. at 687.

The Sixth Circuit nevertheless upheld this

delegation, reasoning that this Court’s precedents have

virtually foreclosed lower federal courts from ever

invalidating a congressional delegation of legislative

authority. In its view—and in the view of practically

every appellate court nationwide—the Constitution’s

limits on such delegations are moribund until this

Court says otherwise.

This is the case to do so. At bottom, this petition asks

whether Article I includes a “nondelegation principle

for major questions.” Paul v. United States, 140 S. Ct.

342, 342 (2019) (Kavanaugh, J., respecting the denial of

certiorari) (Paul) (citing Gundy v. United States, 139 S.

Ct. 2116, 2136-2148 (2019) (Gorsuch, J., dissenting),

and Indus. Union, 448 U.S. at 685-86 (Rehnquist, J.,

concurring in the judgment)). Whatever the current

state of nondelegation doctrine for non-major questions,

this Court has never allowed Congress to “expressly

and specifically delegate to [an] agency the authority

both to decide [a] major policy question and to regulate

and enforce.” Id.; see, e.g., A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495 (1935). But that is

exactly what Congress has done here. This petition thus

challenges a statute that implicates the doctrine’s very

core—and in turn, is the natural place for this Court to

announce that reports of the nondelegation doctrine’s

death have been greatly exaggerated.

This case is also an excellent vehicle. It presents a

standalone constitutional challenge; raises no other

issues; and harbors no impediments to review.

If the nondelegation doctrine means anything, this

Court should reverse the decision here. And if not, this

Court should grant review to afford it a proper eulogy.

STATEMENT OF THE CASE

1. In 1970, Congress passed, and President Nixon

signed, the Occupational Safety and Health Act. The

Secretary of Labor soon delegated the Act’s powers to

OSHA, whereunder OSHA wields authority to issue

“three different kinds of standards—national consensus

standards, permanent standards, and temporary

emergency standards.” Indus. Union, 448 U.S. at 640

n.45 (plurality). This case exclusively concerns

“permanent standards”—not national consensus

standards, 29 U.S.C. § 655(a), or emergency temporary

standards, id. § 655(c), such as the vaccine mandate

from NFIB v. OSHA, 595 U.S. 109 (2022) (per curiam).

OSHA’s power to issue permanent standards stems

from § 655(b), which provides that it “may by rule

promulgate … any occupational safety or health

standard[s].” The Act defines such a “standard” as

anything that “requires conditions, or the adoption or

use of one or more practices, means, methods,

operations, or processes, reasonably necessary or

appropriate to provide safe or healthful employment

and places of employment.” 29 U.S.C. § 652(8).

2. This case concerns only permanent safety

standards, not permanent health standards. Safety

standards are those addressing “hazards that cause

immediately visible physical harm” (e.g., falling

objects); health standards, by contrast, are those

dealing with “latent hazards,” like toxic materials or

other harmful physical agents (e.g., carcinogens). Int’l

Union v. OSHA, 938 F.2d 1310, 1313 (D.C. Cir. 1991).

The Act’s definitional provision states that both

safety standards and health standards must be

“reasonably necessary or appropriate to provide safe or

healthful employment and places of employment.” 29

U.S.C. § 652(8) (emphasis added). But the Act contains

no further requirements for safety standards. See id.

Thus, unlike with other standards, the Act does not

provide any other textual guidance regarding the

content of safety standards—e.g., what issues they

should cover, what requirements they should impose, or

what criteria should go into any new regulation.

Health standards are different, in that they are

subject to far more statutory direction. For health

standards, OSHA “shall set the standard which most

adequately assures, to the extent feasible, on the basis

of the best available evidence, that no employee will

suffer material impairment of health or functional

capacity even if such employee has regular exposure to

the hazard dealt with by such standard for the period of

his working life.” Id. § 655(b)(5).

In the “Benzene Case,” this Court held that the Act’s

health-standards provisions do not violate the

nondelegation doctrine—but just barely. The Court

readily acknowledged that a plain reading of those

provisions would “make such a sweeping delegation of

legislative power that it might be unconstitutional.”

Indus. Union, 448 U.S. at 646 (plurality). But taking

§§ 652(8) and 655(b)(5) in tandem, a plurality held the

Act was best read as requiring OSHA to find a

“significant risk of [a] material health impairment”

before issuing any health standard. Id. at 639; see Am.

Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 513

n.32 (1981) (“[A]ll § 6(b)(5) standards must be

addressed to ‘significant risks’ of material health

impairment.”). Then-Justice Rehnquist, concurring in

the judgment, would have held that § 655(b)(5) violated

the nondelegation doctrine, notwithstanding the

plurality’s attempted saving construction. Indus.

Union, 448 U.S. at 687-88.

This Court has never considered OSHA’s authority to

promulgate safety standards, or whether § 652(8)’s

“reasonably necessary or appropriate” metric—the sole

constraint on OSHA’s safety-standard authority—

violates the nondelegation doctrine.

3. OSHA’s power to promulgate safety standards for

“every working man and woman in the Nation” is no

small deal. 29 U.S.C. § 651(b). Rather, it is undeniably

a major grant of authority.

To start, OSHA’s authority extends over virtually

every business in America. The Act mandates that

every “employer” must comply with OSHA’s safety

standards, 29 U.S.C. § 654(a)(2), and defines an

“employer” as any “person engaged in a business

affecting commerce who has employees,” id. § 652(5).

According to OSHA, that definition includes “[a]ny

employer employing one or more employees,” with a

narrow exception for a “farm employer” employing only

“immediate family.” 29 C.F.R. § 1975.4(a), (b)(2). OSHA

even maintains “[c]hurches or religious organizations”

are covered, so long as “they employ” a single person

who happens to be engaged in “secular activities.” Id.

§ 1975.4(c).

OSHA’s domain does not stop at the private sector.

The Act requires all federal agencies—save for the

Postal Service—to create their own occupational safety

and health programs that are “consistent with the

standards promulgated” by OSHA. 29 U.S.C. § 668(a);

see id. § 652(5). And Congress has used its spending

power to “encourage States to accept federal funding—

up to 50% of the total cost of each state plan—in return

for adopting an OSHA-approved state plan,” which

“must be at least as effective as the federal standards

required” by OSHA itself. In re MCP No. 165, 20 F.4th

264, 270-71 (6th Cir. 2021) (Sutton, C.J., dissenting

from denial of initial hearing en banc). Given these

incentives, 22 States have adopted an OSHA-approved

plan. U.S. Dep’t of Lab., OSHA, State Plans,

https://perma.cc/NV68-N4PD.

Complying with OSHA’s standards is expensive,

running well into eight figures every year. See Harvey

S. James Jr., Estimating OSHA Compliance Costs, 31

POLICY SCIENCES 297, 321-341 (1998) (“the total annual

cost of compliance with OSHA’s regulations in 1993 are

estimated at approximately $33 billion”); Nicole V.

Crain & W. Mark Crain, The Impact of Regulatory

Costs on Small Firms 30 (2010) (estimating that

occupational safety and health regulations cost $65

billion annually). As just one recent example, OSHA is

currently considering a workplace-violence standard for

the healthcare industry projected to cost employers

$1.22 billion annually. See OSHA, Workplace Violence

SBREFA, Prevention of Workplace Violence in

Healthcare and Social Assistance, SBREFA Materials

for Review – Issues Document and Preliminary Interim

Regulatory

Flexibility

Analysis

(PIRFA),

https://perma.cc/A254-5FZT.

It is also enormously costly for an employer to violate

OSHA’s standards. Transgressors face penalties up to

$16,131 per violation, with willful or repeated offenses

triggering sanctions up to $161,323. 29 U.S.C. §§

666(a), (c); see 28 U.S.C. § 2461 note; U.S. Dep’t of Lab.,

OSHA, OSHA Penalties, https://perma.cc/XX7S-YC5E.

And OSHA has not been shy about visiting these

sanctions. In 2022-2023, the agency conducted over

21,000 inspections, issued over 58,000 citations, and

imposed over $261 million in penalties. U.S. Dep’t of

Lab., OSHA, Industry Profile for an OSHA Standard

Results ALL, https://perma.cc/YR2Z-A8AU.

4. Allstates typifies just how far OSHA reaches, and

just how onerous its standards are on businesses across

the country. Allstates is an Ohio-based general

contractor that provides furnace services to the glass,

metals, and petrochemical industries. R.23-2, at 258. It

has been in business for almost 30 years and has only

four full-time employees. Id. at 258-59.

Despite its small size, Allstates is an American

business, and thus finds itself within OSHA’s ambit. As

a result, every year, Allstates must spend thousands of

dollars complying with OSHA’s many standards, along

with hours upon hours training its employees about

their many demands. Id. at 260-263. 1

It does so, because it must. And it does so even

though OSHA’s top-down regulations are often more

dangerous than what Allstates would do on its own. Id.

at 264-65. For example, OSHA’s safety standards for

fall protection and confined spaces are unsafe in the

high-heat environments in which Allstates works,

because they do not allow employees to move quickly

enough to avoid injury from heat exposure. Id. But

OSHA requires Allstates to adhere to these dangerous

rules on pain of substantial penalties.

Allstates prides itself on its commitment to safety.

Over the past 200,000 hours worked by its employees—

an amount of time that took years to reach, given its

size—Allstates has not experienced a single OSHArecordable work-related injury. Id. at 259. Allstates’

experience modification rate—a statistic that measures

the likelihood a business will have a worker’s

compensation claim—reveals it is much safer than

most of its peers. Id. at 260. But in 2019, OSHA fined

Allstates for violating its standards for falling-object

protection, and cited Allstates for violating its

standards for hand and power tools. Id. at 263.

1 For a sample of the safety standards Allstates is subject to, all

promulgated under § 655(b), see 29 C.F.R. § 1910.140 (fall

protection); § 1910.137 (electrical protective equipment);

§§ 1910.132, .133, .135, .136, .138 (personal protective equipment);

§§ 1910.155 to .165 (fire protection).

5. In 2021, Allstates brought a facial challenge under

Article I to OSHA’s authority to promulgate permanent

safety standards. R.1.

Following cross-motions for summary judgment, the

district court granted judgment in OSHA’s favor.

Pet.App.69a-82a. The court agreed that this Court had

“not yet addressed the meaning of ‘reasonably

necessary or appropriate’” in this context, Pet.App.77a78a, but upheld OSHA’s permanent-safety-standard

delegation as falling within this Court’s “intelligible

principle” precedents, Pet.App.76a-77a, 81a.

A divided Sixth Circuit panel affirmed. Joined by

Judge Cook, Judge Griffin held that OSHA’s grant of

authority fell “comfortably” within the delegations that

this Court has already sanctioned. Pet.App.22a. Judge

Nalbandian dissented, finding an “unconstitutional

delegation of legislative power.” Pet.App.67a. The panel

denied rehearing, and the full circuit declined en banc

review. Pet.App.84a.

REASONS FOR GRANTING THE PETITION

THE QUESTION PRESENTED IS IMPORTANT.

The nondelegation doctrine is well known, yet rarely

seen. Since the early Republic, this Court has

recognized that while the Executive Branch can be

given authority to “fill up the details” on certain

regulatory matters, there remain some “important

subjects, which must be entirely regulated by the

legislature itself.” Wayman v. Southard, 23 U.S. 1, 43

(1825) (Marshall, C.J.). But this Court has not directly

enforced that rule since the New Deal, and the lower

courts have drawn a clear conclusion: Until this Court

says something further, the nondelegation doctrine is

dead. Pet.App.7a-10a, 19a-20a, 22a, 24a, 34a n.1.

This Court should correct the misimpression that the

nondelegation doctrine is a constitutional relic that

imposes no real limit on Congress’s ability to pass the

buck on legislative decisionmaking. And this is the case

to start, as it reaches the core of that doctrine: the bar

on Congress “expressly and specifically” giving an

agency “authority to decide major policy questions.”

Paul, 140 S. Ct. at 342; see Schechter Poultry, 295 U.S.

at 541-42; Gundy, 139 S. Ct. at 2136, 2145, 2147

(Gorsuch, J., dissenting); Whitman v. Am. Trucking

Ass’ns, Inc., 531 U.S. 457, 487 (2001) (Thomas, J.,

concurring); Indus. Union, 448 U.S. at 685-87

(Rehnquist, J., concurring in the judgment).

That is precisely what Congress has done here,

giving OSHA the unilateral power to set “appropriate”

safety standards for every workplace in America (save

the family farm), and thereby ceding “significant power

to OSHA to oversee large sections of our economy.”

Pet.App.22a; see Pet.App.41a, 63a-66a. If that does not

violate Article I, nothing does. And if not, this Court

should at least make express what the lower courts

have taken as implicit, and lay the nondelegation

doctrine to rest for good.

A. Article I at Least Precludes Congress

From Delegating Major Questions.

Article I provides that “[a]ll legislative Powers herein

granted shall be vested in a Congress of the United

States.” U.S. Const. art. I, § 1. This grant of power to

Congress bars its transfer to another branch. As Chief

Justice Marshall put it: Congress may not “delegate …

powers which are strictly and exclusively legislative.”

Wayman, 23 U.S. at 42-43.

This doctrine is indispensable to the separation of

powers “that underlies our tripartite system of

Government.” Mistretta v. United States, 488 U.S. 361,

371 (1989). It ensures “that any new laws governing the

lives of Americans are subject to the robust democratic

processes the Constitution demands,” NFIB, 595 U.S.

at 124-25 (Gorsuch, J., concurring), and guards against

a “government by bureaucracy supplanting government

by the people,” A. Scalia, A Note on the Benzene Case, 4

AEI, J. ON GOVT. & SOC. 25, 27 (1980) (Scalia).

Of course, simply delegating policymaking discretion

does not violate the separation of powers. And where

Congress has made somewhat tailored delegations, this

Court has in turn “‘almost never felt qualified to

second-guess Congress regarding the permissible

degree of policy judgment that can be left to those

executing or applying the law,’” Whitman, 531 U.S. at

474-75; see Indus. Union, 448 U.S. at 684-85

(Rehnquist, J., concurring in the judgment) (“[T]his

Court has abided by a rule of necessity, upholding

broad delegations of authority where it would be

‘unreasonable and impracticable to compel Congress to

prescribe detailed rules’ regarding a particular policy or

situation.”). But even still, a majority of this Court has

reaffirmed that at some point delegation crosses into

abnegation, and that the status quo’s approach to

policing that line may be gravely out of step with the

Constitution’s structure and original meaning. 2

2 See, e.g., Gundy, 139 S. Ct. at 2130-31 (Alito, J., concurring in

the judgment); id. at 2133-42 (Gorsuch, J., joined by Roberts, C.J.

and Thomas, J., dissenting); Paul, 140 S. Ct. at 342; Dep’t of

Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 76-77 (2015) (Thomas,

J., concurring in the judgment).

Whatever the line when it comes to delegations more

generally, this Court has never sanctioned Congress

“expressly and specifically delegat[ing] to [a federal]

agency the authority both to decide [a] major policy

question and to regulate and enforce [it].” Paul, 140

S. Ct. at 342; see Schechter Poultry, 295 U.S. at 541-42.

In other words, this Court has never let the Executive

unilaterally make major policy. For good reason. In our

system of government, sometimes the “significance of

the delegated decision is simply too great for” it to be

made by anyone but Congress, Whitman, 531 U.S. at

487 (Thomas, J., concurring), which holds exclusive

power to legislate on “major questions,” Gundy, 139 S.

Ct. at 2142 (Gorsuch, J., dissenting).

Instead, under the Constitution, the rules of the road

for “important choices of social policy” must be made by

Congress—and only Congress. Indus. Union, 448 U.S.

at 685 (Rehnquist, J., concurring in the judgment).

That has been true from the get-go. See Ilan Wurman,

Nondelegation at the Founding, 130 YALE L.J. 1490,

1497 (2021) (“Overall, the picture the Founding-era

history paints is one of a nondelegation doctrine

whereby Congress could not delegate to the Executive

decisions over ‘important subjects’”). And it is why “a

merely plausible textual basis” can support an agency

action “[i]n the ordinary case,” but not when “major

policy decisions” are at stake. West Virginia v. EPA, 597

U.S. 697, 721-23 (2022) (noting the “separation of

powers” underlies this distinction); see also Biden v.

Nebraska, 143 S. Ct. 2355, 2380-81 (2023) (Barrett, J.,

concurring) (“[I]n a system of separated powers, a

reasonably informed interpreter would expect Congress

to legislate on ‘important subjects’ while delegating

away only ‘the details.’”).

Overlooking this distinction, the lower federal courts

have drawn all the wrong lessons from this Court’s

precedents. They have given all nondelegation

challenges the back of the hand for decades. But this is

a grave misreading of this Court’s cases, with grave

consequences for the separation of powers to boot. At

bottom, delegating the power to make rules on major

questions of policy is not an application of this Court’s

precedent, but an extension of it—and one this Court

has never sanctioned. See Paul, 140 S. Ct. at 342;

Schechter Poultry, 295 U.S. at 541-42.

That is precisely what happened in this case below,

where the panel majority reasoned, in essence, that

this Court has shut the door on all nondelegation

challenges. Pet.App.7a-10a. Other recent examples are

not hard to find. See, e.g., Consumers’ Research v. FCC,

88 F.4th 917, 924 (11th Cir. 2023); id. at 929 (Newsom,

J., concurring in judgment) (“Their challenge fails, as I

see it, only because non-delegation doctrine has become

a punchline.”); id. at 938-39 (Lagoa, J., concurring). The

lower federal courts now uniformly believe that any

stripe of nondelegation challenge is doomed to fail

under this Court’s precedent.

Thus, this Court must say something to preserve the

constitutional truth that only Congress may legislate

on major policy questions. Unless it corrects the

misimpression that the nondelegation doctrine is a

curious artifact—something for law school exams, but

not real cases—the lower federal courts will continue to

heed what they think is the message. And Congress

will continue to pass the buck to the Executive,

unbound by an unenforced limit.

B. Congress Delegated to OSHA the Power

Over a Major Policy Question.

Congress “expressly and specifically” delegated to

OSHA the power to set permanent safety standards for

virtually every business in the country. Paul, 140 S. Ct.

at 342. According to OSHA, it has the power to do

everything from regulate the minutiae of how Allstates

employees use power tools, to “eliminate familiar sports

and entertainment practices, such as punt returns in

the NFL, speeding in NASCAR, or the whale show at

SeaWorld.” SeaWorld, 748 F.3d at 1222 (Kavanaugh,

J., dissenting) (citing FDA v. Brown & Williamson

Tobacco Corp., 529 U.S. 120, 160 (2000)). And in

addition to giving OSHA power to make these major

rules, Congress also empowered it to enforce them with

steep monetary penalties—or at times, even prison. 29

U.S.C. §§ 654(a)(2), 652(5), 666(a), (c), (e).

“If that delegation sounds like a lot of power—it is. It

gives [OSHA] broad discretion to create mandatory safe

and healthy working conditions for ‘every working man

and woman in the Nation.’” Pet.App.41a (quoting §

651(b)). Even the Sixth Circuit acknowledged—and the

government never disputed—that “Congress has

allowed OSHA to regulate much of the economy.”

Pet.App.21a. Section 655(b) “isn’t a statute that only

pertains to one industry.” Pet.App.63a. “Nor does the

power seem to be a traditional executive function.” Id.

“Instead, [the Act] delegates broad power over every

industry that has a workplace (probably all of them)—

power to create permanent health and safety standards

that would not traditionally fall within the Executive

Branch’s wheelhouse.” Pet.App.63a-64a. “In view of the

scope of that broad declaration and of the nature of the

few restrictions that are imposed,” OSHA’s discretion to

promulgate safety standards “is virtually unfettered.”

Schechter Poultry, 295 U.S. at 541-42; see NFIB, 595

U.S. at 117 (OSHA has the off-the-shelf power to

impact a “vast number of employees” by its fiat alone).

This has all borne out in practice. OSHA standards

cost employers tens of billions of dollars each year, with

each new rule adding a few billion more to the ledger.

See supra at 7-8. On top of these compliance costs,

OSHA annually singles out thousands of employers for

inspections, citations, and millions of dollars in fines.

Id. OSHA often wields its vast enforcement power in

“arbitrary” ways by drawing “head-scratching

distinctions” between employers. SeaWorld, 748 F.3d at

1221 (Kavanaugh, J., dissenting). Indeed, OSHA has a

long track record of growing its vast domain to “storm[]

headlong into … new regulatory arena[s].” Id. at 1218.

As the D.C. Circuit put it decades ago, “the scope of”

OSHA’s regulatory domain “is immense, encompassing

all American enterprise.” Int’l Union, 938 F.2d at 1317;

see Sunstein, supra, at 1429 (OSHA wields an

“untrammeled discretion” over “essentially all

American workers”). And all in an “area—public health

and safety—traditionally regulated by the States.”

MCP No. 165, 20 F.4th at 267 (Sutton, C.J., dissenting

from the denial of initial hearing en banc); see also

Pet.App.64a n.16; SeaWorld, 748 F.3d at 1218, 1222

(Kavanaugh, J., dissenting).

This Court has a word to describe a delegation that is

“immense,” giving a federal agency “broad discretion”

over “all American enterprise,” a “vast number” of its

employees, and in a regulatory area traditionally

managed by the State—“major.” West Virginia, 597

U.S. at 721-22. Regardless of any other tenet of the

nondelegation doctrine—or any supposed agency

expertise—the authority to decide the major policy

question regarding the “appropriate” safety standards

for all employers nationwide abides in Congress alone.

Paul, 140 S. Ct. at 342; see also Utility Air Regul. Grp.

v. EPA, 573 U.S. 302, 324 (2014); Schechter Poultry,

295 U.S. at 541-42; Indus. Union, 448 U.S. at 687

(Rehnquist, J., concurring in the judgment).

But Congress has passed it off on OSHA. Absent the

Court’s intervention, this will remain the new normal.

If all Congress needs to do to resolve a major policy

question is identify it, and tell an agency to solve it as

“appropriate,” federal legislation will continue to

devolve into “nothing more than the will of the current

President, or, worse yet, the will of unelected officials

barely responsive to him.” West Virginia, 597 U.S. at

739 (Gorsuch, J., concurring). Whatever the merits of

that approach, it is not the Framers’ government. It is

instead a “blueprint” for totally leveling our “system of

checks and balances.” Free Enter. Fund v. PCAOB, 561

U.S. 477, 500 (2010).

C. The Major Questions Doctrine Informs

the Standard, But Cannot Solve the

Problem.

This Court’s recent major questions cases make the

question presented here ripe for resolution—but they

do not (and cannot) solve the delegation problem.

The major questions doctrine is a tool for reading

ambiguous grants of statutory authority; it presumes

that Congress does not intend to delegate away its

authority on major questions. But it offers little help

where Congress makes such a delegation unambiguous.

Where Congress forces the issue and clearly delegates a

major question to a federal agency—as it did here—it is

the nondelegation doctrine alone that can do the job.

Schechter Poultry, 295 U.S. at 541-42. In this situation,

the major questions doctrine can only inform the

“nondelegation principle” by helping to identify when a

delegation is in fact “major.” Paul, 140 S. Ct. at 342.

1. The major questions doctrine has been a feature

of this Court’s jurisprudence (under one name or

another) for “at least 40 years.” Nebraska, 143 S. Ct. at

2381 (Barrett, J., concurring). It provides a workable

and sensible standard for deciding when a legislative

policy decision is so significant that it must be made by

Congress alone.

“Because the Constitution vests Congress with all

legislative Powers, a reasonable interpreter would

expect it to make the big-time policy calls itself, rather

than pawning them off to another branch.” Id. at 2380.

Americans expect Congress “to make major policy

decisions itself, not leave those decisions to agencies.”

United States Telecom Ass’n. v. FCC, 855 F.3d 381, 419

(D.C. Cir. 2017) (Kavanaugh, J, dissenting from the

denial of rehearing en banc). The doctrine is thus a

“commonsense” one, as shaped by our political

tradition’s common sensibilities. Nebraska, 143 S. Ct.

at 2380 (Barrett, J., concurring); see Gundy, 139 S. Ct.

at 2142 (Gorsuch, J., dissenting).

Applying these intuitions, this Court’s cases have

marked the touchstones for when a legislative policy

decision is too weighty to be resolved by anyone other

than the people’s elected representatives in Congress.

For instance, a policy is major if it reaches a

“significant portion of the American economy” or

involves “billions of dollars in spending by private

persons or entities”; concerns a subject of “great

political significance”; or would “intrud[e] into an area

that is the particular domain of state law.” West

Virginia, 597 U.S. at 743-44 (Gorsuch, J., concurring).

In each instance, the issue is “significant” enough to

require Congress’s voice alone. Id. at 744.

2. The major questions doctrine therefore prevents

federal agencies from discovering elephants in

mouseholes. But it cannot stop an agency that has been

explicitly gifted a pachyderm. That is, where Congress

“expressly and specifically delegate[s] to the agency the

authority … to decide [a] major policy question,” the

major questions doctrine does not stand in its way; the

only thing that would is “nondelegation.” Paul, 140 S.

Ct. at 342; see NFIB, 595 U.S. at 124 (Gorsuch, J.,

concurring) (nondelegation doctrine is necessary to

prevent “Congress from intentionally delegating its

legislative powers” in the first place).

This case is a prime example. There is no doubt

OSHA has been handed authority over major policy

questions here. See supra at 6-8. As clear, however, is

the fact that the major questions doctrine can do

nothing about it. As the panel below noted, “this is not

a major-questions case,” Pet.App.20a n.3, as Congress

clearly told OSHA to write “any occupational safety …

standard,” § 655(b) (emphasis added); see NFIB, 595

U.S. at 120 (“Congress has indisputably given OSHA

the power to regulate occupational dangers”).

The dispute here is thus not whether Congress has

given OSHA extraordinary power over every workplace

in America—it has. The issue is whether Congress can

do so. As for that question, the major questions doctrine

can inform the answer, but cannot provide it.

3. The major questions doctrine thus cannot solve

the constitutional problem presented here. And that is

a serious deal, for this Court’s major question cases also

make another thing apparent: The doctrine is trying to

treat the symptoms of a far more deep-rooted disease.

The fundamental problem is that Congress has made

it a steady practice to write broader and broader laws,

with vaguer and vaguer standards, delegating away its

legislative power over greater and greater swaths of

American life. “The Framers could hardly have

envisioned today’s ‘vast and varied federal bureaucracy’

and the authority administrative agencies now hold

over our economic, social, and political activities.” City

of Arlington v. FCC, 569 U.S. 290, 313 (2013) (Roberts,

C.J., dissenting). To be sure, the major questions

doctrine has proven essential in nipping the most

offensive outgrowths of that system. But it can only do

so much, limited to discrete rules that transgress

specific statutory provisions.

This is deeply inadequate, because it fails to address

the deeper constitutional ill. When Congress delegates

a major policy question to an agency, that delegation is

what contravenes the Constitution’s structure. But if

left to rule-by-rule adjudication, the delegation itself

will almost always escape scrutiny. How an agency goes

about answering the major question it has been tasked

with resolving will rarely trigger the major questions

doctrine. It will be a falling-object standard here; a

power-tools rule there. While each independent rule

may seem inoffensive on its own, their collective sum

will be a major policy initiative developed entirely by

federal bureaucrats, unaccountable to the people. See

id. at 313-14. But it makes no difference to the

separation of powers whether an agency decides a

major question over a series of rules, or in one fell

swoop. For law as in life, a death by a thousand cuts is

a death all the same.

Accordingly, without a nondelegation doctrine that

prevents major delegations at the outset, this Court

will be consigned to a never-ending game of

constitutional whack-a-mole: It will be called upon to

police the worst excesses of agencies wielding their

major delegated powers, which will embroil the Court

in controversy time and again as it clashes with the

most aggressive parts of the President’s agenda. The

only way to fix this problem is to make clear that such

major delegations are forbidden in the first place,

putting the “hard choices” back in the hands of “the

elected representatives of the people.” Indus. Union,

448 U.S. at 687 (Rehnquist, J., concurring in the

judgment). This is the case to start.

II. THIS CASE IS AN IDEAL VEHICLE.

This case presents a clean nondelegation challenge to

perhaps the most open-ended delegation of legislative

authority in the U.S. Code. Sunstein, supra, at 1448. It

is an excellent vehicle to address the scope of that

doctrine and, in particular, whether the Constitution

contains a “nondelegation principle for major

questions.” Paul, 140 S. Ct. at 342.

First, this case indisputably involves the delegation

of a major policy question to an agency, Pet.App.21a22a, 41a, 63a-66a, so resolving it does not necessitate

any wholesale reevaluation of the nondelegation

doctrine for everything else. No party is asking this

Court to raze its precedent, without a plan for what

comes next. Cf. Haaland v. Brackeen, 599 U.S. 255,

279-80 (2023). The Court can decide this case by simply

holding that “major national policy decisions must be

made by Congress and the President in the legislative

process, not delegated by Congress to the Executive

Branch.” Paul, 140 S. Ct. at 342 (citing Indus. Union,

448 U.S. at 685-86 (Rehnquist, J., concurring in the

judgment)). Nor would this case involve this Court

adopting a standard that poses too many known

unknowns. Cf. Fulton v. City of Philadelphia, 141 S. Ct.

1868, 1883 (2021) (Barrett, J., concurring). Rather, a

straightforward way to resolve this case is to ask

whether the Constitution bars Congress from

delegating major questions of policy. And if so, the

Court would have its existing body of major questions

cases to guide when Congress has done so.

Second, addressing this issue does not require

reevaluating or overturning any existing precedent.

This Court has never “decided whether the permanent

[safety] standards provision under OSHA constitutes

an unconstitutional delegation of power,” Pet.App.40a41a & n.2, nor endorsed the notion that Congress may

delegate a major policy question to an agency. Said

otherwise, and as discussed more below, the delegation

here is different in kind from all of those this Court has

previously upheld. Pet.App.53a.

Third, this case cleanly tees up the question. The

complaint asserts a single claim—a facial challenge to

the constitutionality of § 655(b). Moreover, Allstates is

seeking only a declaratory judgment and a partyspecific injunction. Nor are there any threshold

impediments to reaching the merits: Allstates

undisputedly has standing, and the courts below all

found there to be subject-matter jurisdiction.

Fourth, although the question here does not involve a

circuit split—unsurprisingly, given the lower-court

consensus that the “non-delegation doctrine has become

a punchline,” Consumers’ Research, 88 F.4th at 929

(Newsom, J., concurring in judgment)—§ 655(b) has

long generated “uncertainty” as to how to give content

to its open-ended provisions. Indus. Union, 448 U.S. at

672 (Rehnquist, J., concurring in the judgment). That

independently highlights the need for this Court’s

review. Indeed, while the opinion below agreed with the

D.C. and Seventh Circuits that § 655(b) does not violate

the Constitution, it did engender a circuit split as to

whether § 655(b) is mandatory (i.e., OSHA must

regulate in the face of a significant risk) or permissive

(as the D.C. and Third Circuits have held, see infra at

31-32). 3

Should

this

Court

hold

§ 655(b)

unconstitutional, it would cut through this Gordian

knot outright. But to the extent it does not, it would

still need to resolve what § 655(b) means as part of

upholding its constitutionality. So either way—win or

lose—this petition warrants review.

Fifth, holding this delegation unconstitutional will

reinvigorate the nondelegation doctrine without

causing severe practical consequences. OSHA has

identified only a handful of safety standards that would

be affected by holding this delegation unconstitutional.

OSHA C.A. Br. 5-6. The vast majority of OSHA’s

3 As Judge Nalbandian explained, neither the D.C. nor the

Seventh Circuits analyzed the constitutional question presented

here at any length, and neither offers a sound reason for how

§ 655(b) squares with the nondelegation doctrine. Pet.App.46a-47a

n.6 (discussing Nat’l Mar. Safety Ass’n v. OSHA, 649 F.3d 743, 750

n.8 (D.C. Cir. 2011); Blocksom & Co. v. Marshall, 582 F.2d 1122,

1125 (7th Cir. 1978)).

regulations would be unaffected by a ruling for

Allstates because they rest on alternative sources of

rulemaking authority: this suit does not challenge

OSHA’s ability to issue national consensus standards,

temporary emergency standards, or even permanent

health standards—all of which involve different,

narrower grants of authority than the one at issue

here. See Indus. Union, 448 U.S. at 688 n.8 (Rehnquist,

J., concurring in the judgment); NFIB, 595 U.S. at 114.

Moreover, even in the absence of an applicable

regulation, OSHA has “regulatory tools … at its

disposal to ensure that employers are maintaining

hazard-free work environments.” In re AFL-CIO, No.

20-1158, 2020 WL 3125324, at *1 (D.C. Cir. June 11,

2020). For example, OSHA could directly enforce the

statute’s mandate to keep workplaces “free from

recognized hazards that are causing or are likely to

cause death or serious physical harm.” 29 U.S.C.

654(a)(1). OSHA has also issued “a broad collection of

guidance materials” addressing “health and safety

issues.” Dep’t of Labor’s Resp. to Emergency Pet. for a

Writ of Mandamus 5, In re AFL-CIO, No. 20-1158 (D.C.

Cir. filed May 29, 2020). And even if OSHA were

unable to address a particular safety hazard, nothing

that the Court says about § 655(b) would affect the

ability of the states to establish their own workplace

safety regimes in an area “traditionally regulated by

the States.” Pet.App.64a n.16; see 29 U.S.C. §§

651(b)(11), 667(a)-(b); supra at 7.

More broadly, adopting a nondelegation principle for

major questions would not spell the end of the

administrative state. As one of its chief defenders put

it: vindicating Article I here “would be less radical than

it might seem.” Sunstein, supra, at 1448. If anything,

holding OSHA’s safety-standard delegation unlawful

would “have a democracy-forcing function, one that

would spur a degree of national deliberation about how

best to protect American workers” and would likely

“produce a greatly improved statute” through the

legislative process in Congress. Id. at 1447-48.

So too for agencies and statutes beyond OSHA. “The

separation of powers does not prohibit any particular

policy outcome, let alone dictate any conclusion about

the proper size and scope of government.” Gundy, 139

S. Ct. at 2145 (Gorsuch, J., dissenting). Unlike other

constitutional commands that serve as “an absolute

impediment to governmental action,” the nondelegation

doctrine “merely requires the action to be taken in a

different fashion.” Scalia, supra, at 28. So Congress

could still “delegate to agencies the authority to decide

less-major or fill-up-the-details decisions,” even through

broad statutory language. Paul, 140 S. Ct. at 342; see

also Gundy, 139 S. Ct. at 2136 (Gorsuch, J., dissenting).

But the one thing Congress cannot do is what it did

here: give the Executive the unilateral power to decide

a major question of federal policy. Of course,

“lawmaking under our Constitution can be difficult.”

West Virginia, 597 U.S. at 738 (Gorsuch, J.,

concurring). But the difficulty of creating new laws is a

feature of our constitutional system of government, not

a bug. Congress must live within those strictures; and

this Court must hold it to those bounds.

III. THE DECISION BELOW IS WRONG.

If the nondelegation doctrine means anything, then

OSHA’s safety standards power is unconstitutional.

The Sixth Circuit held otherwise based on two main

premises: One, that the Act could be read as conferring

a narrower grant of power; and two, that in all events,

this Court’s cases have blessed such delegations. Both

are wrong, and neither can sustain the unlawful

delegation here.

A. Section 655(b) Violates Article I.

Article I’s “text permits no delegation of” Congress’s

legislative “powers,” Whitman, 531 U.S. at 472, but the

Act violates that rule from any vantage point.

As detailed above, perhaps the most straightforward

way the Act violates the nondelegation doctrine is that

it confers on OSHA the “authority to decide [a] major

policy question[]” through legislative rulemaking. Paul,

140 S. Ct. at 342; see supra Part I.B. Adopting this

principle, then-Justice Rehnquist’s Benzene opinion

provides a clear roadmap for resolving this case.

Indeed, it follows a fortiori, given the Act’s grant of

authority for permanent safety standards is far broader

than its grant for permanent health standards, which

Justice Rehnquist found violated the separation of

powers. Indus. Union, 448 U.S. at 685-86 (Rehnquist,

J., concurring in the judgment). Even more here than

there, the Act’s delegation entrusts to OSHA the task of

“balancing statistical lives and industrial resources” in

the workplace—and in so doing, setting rules that trade

off the safety of employees versus the economic growth

of industry across almost every business in the nation.

Id. at 685. Those “important choices of social policy,”

however, must be “made by Congress.” Id.; see West

Virginia, 597 U.S. at 730. Nothing more is required to

hold the delegation here unconstitutional.

Moreover, even if Congress could delegate some

major policy questions to agencies, this one would still

be unlawful, because the statute fails to provide an

“intelligible principle,” under this Court’s cases—at

least properly understood. See Gundy, 139 S. Ct. at

2141

(Gorsuch,

J.,

dissenting)

(discussing

“misunderstandings of the intelligible principle ‘test’”).

Under those precedents, Congress must “meaningfully

constrain[]” the agency through “specific restrictions”

on its “discretion.” Touby v. United States, 500 U.S.

160, 166-67 (1991). In particular, a statute must either

provide “(1) a fact-finding or situation that provokes

Executive action or (2) standards that sufficiently guide

Executive discretion.” Pet.App.40a (citing Panama

Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter

Poultry, 295 U.S. 495).

The statute here fails to do so, as Judge Nalbandian

explained at length below. The Act’s only constraint is

that a standard must be “reasonably necessary or

appropriate”—a disjunctive that allows OSHA to act if

either is met. 29 U.S.C. § 652(8) (emphasis added). And

if the term “appropriate” amounts to a meaningful

constraint, those words have no meaning. Rather,

“appropriate” is the textbook “all-encompassing term

that naturally and traditionally includes consideration

of all the relevant factors.” Michigan v. EPA, 576 U.S.

743, 752 (2015). The Act thus “doesn’t seem to require

anything but the Secretary asking: What seems

appropriate in workplaces around the nation?”

Pet.App.55a-56a.

That is an unconstitutional delegation. “Appropriate”

is in the eye of the beholder; but a standard that is all

things to all people is no standard at all. And here, the

term “appropriate” requires no fact-finding by OSHA

before it acts, nor does it provide the federal courts with

any ascertainable standard with which to evaluate

those actions. Pet.App.50a, 61a.

Moreover, while that open-ended delegation would be

bad enough, it is constitutionally disastrous in light of

the scope of OSHA’s power. “[W]hen the grant of power

is big[], such that it can affect the entire national

economy, Congress must provide substantial

guidance.’” Pet.App.63a. And it has not done so. This is

thus one of those rare cases that flunks Panama

Refining and Schechter Poultry, because Congress has

given the Executive “virtually unfettered” discretion to

write “laws for the government of trade and industry

throughout the country.” Pet.App.50a; Schechter

Poultry, 295 U.S. at 542.

This Court has never upheld such a major delegation

of legislative power as in this case, and thus there is no

need to overturn any precedent here. But to the extent

this Court’s cases do bless the delegation at issue here,

they should be overturned. This Court’s “intelligible

principle” test fits poorly with the Constitution’s

original public meaning—as a majority of this Court

has documented. See supra n. 2; see also Pet.App.65a66a n.17. The Framers understood the term “legislative

power” in Article I “to mean the power to adopt

generally applicable rules of conduct governing future

actions by private persons.” Gundy, 139 S. Ct. at 2133

(Gorsuch, J., dissenting). “And yet ... the citizen

confronting thousands of pages of regulations—

promulgated by an agency directed by Congress to

regulate, say, ‘in the public interest’—can perhaps be

excused for thinking that it is the agency really doing

the legislating.” City of Arlington, 569 U.S. at 315

(Roberts, C.J., dissenting). While the Constitution

permits the Executive to “fill up the details” of

legislation as part of executing the law, it does not

allow the Executive to determine the law’s basic

demands. Gundy, 139 S. Ct. at 2138 (Gorsuch, J.,

dissenting). That was “the legislative power that the

Framers” entrusted to Congress, and also “sought to

protect from consolidation with the executive.” Dep’t of

Transp. v. Ass’n of Am. R.Rs., 575 U.S. 43, 76 (2015)

(Thomas, J., concurring in the judgment).

The “intelligible principle” test fails to properly

safeguard this distinction. And here, but for that test’s

all-too-forgiving standard for evaluating congressional

delegations, the Act’s delegation to OSHA in § 655(b)

would be unlawful, because it clearly allows the

Executive to perform what the Framers understood to

be “legislative power.”

B. The Court of Appeals Erred in Failing to

Hold § 655(b) Unconstitutional.

The Sixth Circuit nevertheless upheld this

unconstitutional delegation. It did so foremost by

grafting onto the Act limitations it does not contain—

and further held that even if OSHA’s delegation was

rather capacious, it was no more so than those this

Court has already tolerated. As Judge Nalbandian

explained, neither of those arguments persuades. And

neither offers a reason for this Court to decline review

of the decision below.

1. Perhaps aware of the problems that would come

with reading the Act as written, the court of appeals

tried to narrow § 655(b) in four ways. None works in

light of the statute’s text; more fundamentally, none

solves the underlying nondelegation problem.

First, the court held that OSHA was constrained by

the “host of principles, purposes, and goals” the Act

states it furthers. Pet.App.13a. But these high-level

policy statements—all geared generically to improving

safety, see, e.g., 29 U.S.C. § 651(b)—do not bind OSHA

in any sense, or provide any real guidance as to how it

should execute its discretion. In telling OSHA to

further these broad goals as “appropriate,” Congress

has at most “‘merely announce[d] vague aspirations

and then assign[ed] [OSHA] responsibility of adopting

legislation to realize its goals.’” Tiger Lily, LLC v. HUD,

5 F.4th 666, 674 (6th Cir. 2021) (Thapar, J.,

concurring).

That is not enough. In essence, the Act’s overarching

statements of policy are too high-level to matter, and

make none of the hard choices or tradeoffs that are

supposed to be done by the legislature. OSHA has been

simply told the goal is safety (whatever that means),

and that it should get there as appropriate (whatever

that means). As Judge Nalbandian explained, these

“purpose statements ‘in no way limit the authority

which [the Act] undertakes to vest in [OSHA] with no

other conditions than those there specified.’”

Pet.App.56a.

Second, the court held that OSHA could only issue a

safety standard when “required,” such that the

standard must be one that “is genuinely needed to

protect the safety of workers.” Pet.App.14a. But this

rests on a clear misreading of the statute. The statute

defines a standard as something that “requires”

something of regulated parties. 29 U.S.C. § 652(8). But

that is about what a standard does, not when a

standard can be issued. As for the latter, the same

provision makes explicit OSHA may issue a standard

anytime doing so is either “reasonably necessary or

appropriate.” Id.; see also Pet.App.52a n.8 (this

“‘require[ment]’ language pertains to employees or

employers, not the Secretary”).

Third, the court relied upon dictionary definitions for

“reasonable” and “necessary” to conclude that the

“standards adopted should be needed to improve safety

but not to the exclusion of all else.” Pet.App.16a. But

the statute says that the agency has the discretion to

issue safety standards that are “reasonably necessary

or appropriate,” and that language is plainly

disjunctive, not conjunctive. Supra Part III.A. So even

if the court of appeals’ definition of “reasonably

necessary” is right, it is incomplete. The statute also

allows OSHA to issue whatever safety standards are

“appropriate.” And that word’s definition is the

quintessential all-the-above term, maximizing

discretion and minimizing restraint. Pet.App.55a-56a.

Fourth, the court held OSHA’s discretion was also

constrained, because the Act is mandatory, such that

the agency “must take action and issue standards in

response to safety issues.” Pet.App.14a. For starters,

even if this were a plausible reading of the Act, it is

hard to see how it helps: Forcing an agency to exercise

its unbounded discretion to issue major rules whenever

it deems fit would seem to make any nondelegation

problem worse, not better.

Regardless, the court’s reading is implausible. The

Act states that OSHA “may” issue safety standards

when doing so is “reasonably necessary or appropriate.”

29 U.S.C. §§ 655(b), 629(8). And the panel offered no

reason—none—why “may” would mean “must” in this

context. Pet.App.14a. Nor could it, as Judge

Nalbandian detailed. Pet.App.47a-49a. Indeed, as

touched on above, the only other appellate courts to

consider whether § 655(b) is mandatory or permissive

have come out in the latter camp, as compelled by the

Act’s plain text, coupled with the tremendous practical

complications of a mandatory regulation-issuing

provision in this setting. See In re Nat’l Nurses United,

47 F.4th 746, 754 (D.C. Cir. 2022); Int’l Union v. Chao,

361 F.3d 249, 254 (3d Cir. 2004).

Accordingly, none of the attempts by the court of

appeals to cabin OSHA’s discretion work on a plain

reading of the statute. Of course, trying to rewrite a

statute to save it from a nondelegation problem is a

doubtful practice in its own right, because imposing

bounds on a boundless law “would itself be an exercise

of the forbidden legislative authority.” Whitman, 531

U.S. at 473. But in all events, each attempt by the court

to do that here is irreconcilable with the text. By

design, the Act gives OSHA the power to set any and

all workplace safety standards for the entire nation, so

long as those standards are “appropriate.”

More fundamentally, even if the Sixth Circuit were

right about how to read § 655(b), it would not solve the

core constitutional problem here. Again, perhaps the

central defect with § 655(b) is its scope—the ability of a

federal agency to decide for itself a major question of

federal policy. And nothing above reduces OSHA’s

function to “decid[ing] less-major or fill-up-the-details

decisions.” Paul, 140 S. Ct. at 342. The constitutional

defect here, simply put, is inescapable.

2. The court of appeals also reasoned that, however

one reads § 655(b), it says enough to survive review

under this Court’s cases. Pet.App.16a-20a. But as

already noted, that is a grave misreading of this Court’s

precedent, which has never sanctioned Congress

“expressly and specifically delegat[ing] to [an] agency

the authority … to decide [a] major policy question.”

Paul, 140 S. Ct. at 342 (Kavanaugh, J., respecting the

denial of certiorari).

Indeed, as Judge Nalbandian catalogued, this Court

has never faced a delegation like the one here. In each

of its earlier cases, “other factors—whether it be factfinding, situations, criteria, or considerations—

provided an agency sufficient guidance on the

boundaries of its authority.” Pet.App.53a; see Gundy,

139 S. Ct. at 2129 (plurality); Indus. Union, 448 U.S. at

684-85 (Rehnquist, J., concurring in the judgment). But

not § 655(b). See Sunstein, supra, at 1431 (as compared

to the law in Whitman, “Congress left [OSHA] at sea”).

That includes the Benzene Case—even if it is hard to

glean a clean holding from it. See Scalia, supra, at 25

(the case is a “three-one-one-four split decision that

literally provides no conclusive answer to any legal

question more general than whether the benzene

exposure regulation” was valid). For one, that case

turned on a separate provision governing health

standards, 29 U.S.C. § 655(b)(5), which “requir[ed] the

agency to ‘“set the standard which most adequately

assures, to the extent feasible, on the basis of the best

available evidence, that no employee will suffer any

impairment of health.”’” Whitman, 531 U.S. at 473.

Here, by contrast, “the only substantive criteria” for

safety standards, Indus. Union, 448 U.S. at 640 n.45

(plurality), are that they be “reasonably necessary or

appropriate,” 29 U.S.C. § 652(8). Moreover, even there,

the plurality read the Act to require (i) a specific

factual-finding on the part of the agency (a “significant

risk” of a material health impairment), before (ii) the

Executive could exercise a power separately cabined by

another provision (§ 655(b)(5)). See Indus. Union, 448

U.S. at 646 (plurality). None of those hallmarks exists

when it comes to OSHA’s power to issue safety

standards. Pet.App.43a-47a.

In short, nothing in this Court’s precedents blesses

the sweeping delegation here. Rather, the Court has

not yet decided whether to “adopt[] a nondelegation

principle for major questions.” Paul, 140 S. Ct. at 342.

That is why this case “matters so much.” Pet.App.46a47a n.6.

CONCLUSION

The petition for a writ of certiorari should be

granted.

January 26, 2024

Respectfully submitted,