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

APPENDIX

TABLE OF CONTENTS

Page

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

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APPENDIX A

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0194p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ALLSTATES REFRACTORY CONTRACTORS,

LLC,

Plaintiff-Appellant,

v.

JULIE A. SU, in her official capacity as

Acting Secretary of Labor, U.S.

Department of Labor; DOUGLAS L. PARKER, No. 22-3772

in his official capacity as Assistant

Secretary of Labor for Occupational Safety

and Health; OCCUPATIONAL SAFETY &

HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR; UNITED STATES

ATTORNEY FOR THE NORTHERN DISTRICT OF

OHIO,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Ohio at Toledo.

No. 3:21-cv-01864—Jack Zouhary, District Judge.

Argued: April 27, 2023

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Decided and Filed: August 23, 2023

Before: COOK, GRIFFIN, and NALBANDIAN,

Circuit Judges.

COUNSEL

ARGUED: Brett A. Shumate, JONES DAY,

Washington, D.C., for Appellant. Courtney L. Dixon,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees. ON BRIEF: Brett

A. Shumate, John M. Gore, Anthony J. Dick, Brinton

Lucas, JONES DAY, Washington, D.C., Christopher

M. McLaughlin, JONES DAY, Cleveland, Ohio, J.

Benjamin Aguiñaga, JONES DAY, Dallas, Texas, for

Appellant.

Courtney L. Dixon, Alisa B. Klein,

UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellees. Michael Pepson,

AMERICANS FOR PROSPERITY FOUNDATION,

Arlington, Virginia, Timothy S. Bishop, Brett E.

Legner, MAYER BROWN LLP, Chicago, Illinois,

Jeffrey D. Jennings, LIBERTY JUSTICE CENTER,

Chicago, Illinois, Sheng Li, NEW CIVIL LIBERTIES

ALLIANCE, Washington, D.C., David C. Tryon, THE

BUCKEYE INSTITUTE, Columbus, Ohio, Oliver J.

Dunford, PACIFIC LEGAL FOUNDATION, Palm

Beach Gardens, Florida, Luke A. Wake, PACIFIC

LEGAL FOUNDATION, Sacramento, California,

Nicolas A. Sansone, Allison M. Zieve, PUBLIC

CITIZEN LITIGATION GROUP, Washington, D.C.,

Pamela M. Newport, BRANSTETTER, STRANCH &

JENNINGS, PLLC, Cincinnati, Ohio, Brianne J.

Gorod,

CONSTITUTIONAL

ACCONTABILITY

CENTER, Washington, D.C., Ben Seel, DEMOCRACY

FORWARD FOUNDATION, Washington, D.C., Alex

Hemmer, OFFICE OF THE ILLINOIS ATTORNEY

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GENERAL, Chicago, Illinois, Sean H. Donahue,

DONAHUE & GOLDBERG, LLP, Washington, D.C.,

Ian Fein, NATURAL RESOURCES DEFENSE

COUNCIL, San Francisco, California, Sanjay

Narayan, SIERRA CLUB ENVIRONMENTAL LAW

PROGRAM, Oakland, California, Craig Becker, AFLCIO, Washington, D.C., Randy Rabinowitz, OSH LAW

PROJECT, LLC, Washington, D.C., for Amici Curiae.

GRIFFIN, J., delivered the opinion of the court in

which COOK, J., joined. NALBANDIAN, J. (pp. 16–

44), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

More than fifty years ago, Congress passed, and

President Nixon signed into law, the Occupational

Safety and Health (OSH) Act, 29 U.S.C. § 651 et seq.

Throughout the next half century, challenges to the

constitutionality of the Act have been uniformly

rejected. See Nat’l Mar. Safety Ass’n v. Occupational

Safety & Health Admin., 649 F.3d 743 (D.C. Cir. 2011),

cert. denied, 566 U.S. 936 (2012); Blocksom & Co. v.

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

This case presents the same simple but poignant

challenge: whether Congress’s delegation to the

Occupational Safety and Health Administration

(OSHA) to set workplace-safety standards is

constitutional.

Plaintiff Allstates Refractory

Contractors, a general contractor subject to OSHA’s

oversight, challenges OSHA’s authority to set

“reasonably necessary or appropriate” workplacesafety standards, 29 U.S.C. §§ 652(8), 655(b), as a

violation of the nondelegation doctrine. The district

court concluded that the delegation provided an

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“intelligible principle” and thus rejected Allstates’s

challenge. We agree and now join our sister circuits in

holding OSHA’s delegation to be constitutional.

I.

Allstates is a full-service industrial general

contractor that employs people throughout the country.

As an employer subject to the OSH Act, it must comply

with OSHA’s workplace-safety standards and expend

resources to ensure that it does so. It has also been

the subject of enforcement actions in the past,

including a $10,000 fine for a catwalk injury that

occurred in 2019.

In this facial challenge to the OSH Act against the

relevant governmental defendants, Allstates contends

that, because the only textual constraint on setting

workplace-safety standards is that they be

“reasonably necessary or appropriate,” 29 U.S.C.

§ 652(8), OSHA does not have the constitutional

authority to set those standards under § 655(b) and

employers do not have a duty to comply with OSHA’s

standards under § 654(a). In the district court, it

moved for summary judgment, requesting a

permanent nationwide injunction. But, instead, the

district court granted the government’s cross motion

for summary judgment. The court concluded that the

“reasonably necessary or appropriate” standard

provided an “intelligible principle” to satisfy the

nondelegation doctrine because the Supreme Court

has repeatedly upheld similar delegations; so the court

“decline[d]” Allstates’s “invitation” to “disregard these

precedents.” Allstates Refractory Contractors, LLC v.

Walsh, 625 F. Supp. 3d 676, 681–84 (N.D. Ohio 2022).

Allstates timely appealed here.

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II.

Allstates raises the same argument on appeal that

it presented to the district court—that the OSH Act

violates the nondelegation doctrine.

Eventually

conceding that we are bound by the “intelligible

principle” test, 1 Allstates argues that the OSH Act

provides no such principle. On de novo review, see

United States v. Green, 654 F.3d 637, 649 (6th Cir.

2011), we agree with the district court that the Act

comfortably falls within the ambit of delegations

previously upheld by the Supreme Court.

A.

Our Constitution vests “[a]ll legislative Powers . . .

in a Congress of the United States.” U.S. Const. art. I,

§ 1. The nondelegation doctrine, therefore, is “rooted

in the principle of separation of powers that underlies

our tripartite system of Government,” the

maintenance of which “mandate[s] that Congress

generally cannot delegate its legislative power to

another Branch.” Mistretta v. United States, 488 U.S.

361, 371–72 (1989). But while the Constitution

permits no delegation of legislative powers, it does “not

prevent Congress from obtaining the assistance of its

coordinate Branches.” Id. at 372. For nearly a century,

this inquiry has been determined according to the

It first presents threshold arguments that the “intelligible

principle” test violates the original meaning of the Constitution,

asserting that members of the Supreme Court have suggested

reconsidering this approach. See, e.g., Gundy v. United States,

139 S. Ct. 2116, 2138–42 (2019) (Gorsuch, J., dissenting). But we

are bound by that test as long as it is good law. See Worldwide

Equip. of TN, Inc. v. United States, 876 F.3d 172, 181 (6th Cir.

2017).

1

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“intelligible principle” test: “If Congress shall lay

down by legislative act an intelligible principle to

which the person or body authorized to [act] is directed

to conform, such legislative action is not a forbidden

delegation of legislative power.” J.W. Hampton, Jr., &

Co. v. United States, 276 U.S. 394, 409 (1928).

This test balances Congress’s need for flexibility

with the Constitution’s prohibition on legislative

delegation. On one hand, it enforces the underlying

principle of the nondelegation doctrine “that Congress

may not delegate the power to make laws and so may

delegate no more than the authority to make policies

and rules that implement its statutes.” Loving v.

United States, 517 U.S. 748, 771 (1996); see also

Marshall Field & Co. v. Clark, 143 U.S. 649, 693–94

(1892). But it has also long been grounded in the

practical notion that, “in our increasingly complex

society, replete with ever changing and more technical

problems, Congress simply cannot do its job absent an

ability to delegate power under broad general

directives.”

Mistretta, 488 U.S. at 372.

“The

Constitution has never been regarded as denying to

the Congress the necessary resources of flexibility and

practicality, which will enable it to perform its

function.” Id. (citation omitted). For this reason, in

determining

what

Congress

must

do

to

constitutionally obtain help from another branch, “the

extent and character of that assistance must be fixed

according to common sense and the inherent

necessities of the governmental co-ordination.” J.W.

Hampton, Jr., 276 U.S. at 406.

Accordingly, the intelligible-principle test is

satisfied and the statute is constitutional “if Congress

clearly delineates the general policy, the public agency

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which is to apply it, and the boundaries of this

delegated authority.” Mistretta, 488 U.S. at 372–73

(quoting Am. Power & Light Co. v. S.E.C., 329 U.S. 90,

105 (1946)).

This inquiry is one of statutory

interpretation in which we consider the act’s delegated

“task,” the “instructions it provides,” and whether it

“sufficiently guides” the agency’s discretion.

Consumers’ Rsch. v. F.C.C., 67 F.4th 773, 788 (6th Cir.

2023) (quoting Gundy v. United States, 139 S. Ct. 2116,

2123 (2019) (plurality opinion)). In these inquiries, we

must interpret the standard, not in “isolation,” but

with regards to “the purpose of the Act, its factual

background and the statutory context in which [it]

appear[s].” Am. Power & Light, 329 U.S. at 104.

Further, while the “‘degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred,’” we nonetheless “apply one

universal intelligible-principle test regardless of the

type of statute at issue.” Consumers’ Rsch., 67 F.4th

at 788 (quoting Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 475 (2001)). However, this inquiry does not

consider any limiting construction the agency has

adopted—”[w]hether the statute delegates legislative

power is a question for the courts, and an agency’s

voluntary self-denial has no bearing upon the answer.”

Whitman, 531 U.S. at 473.

The Supreme Court, in examining non-delegation

challenges, has almost uniformly upheld “delegations

under standards phrased in sweeping terms.” See

Loving, 517 U.S. at 771; see also 32 Charles A. Wright

& Arthur R. Miller, Federal Practice and Procedure

§ 8122 (2d ed. 1995). Historically, the Court upheld

broad delegations. See, e.g., Marshall Field & Co., 143

U.S. at 692–93 (finding proper a delegation to the

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President to impose retaliatory tariffs if he “deemed”

that American business was being treated unequally);

United States v. Grimaud, 220 U.S. 506, 517, 521

(1911) (holding a delegation constitutional because

Congress had established the “penalties” and the

agency could properly “fill up the details” through

administrative rules).

This acceptance laid the

foundation for the intelligible-principle test, such that

the Court has continued to permit broad delegations.

For example, the Supreme Court upheld delegations

to the President to adjust tariff prices if he, “so far as

he finds it practicable . . . [took] into consideration”

various economic factors, J.W. Hampton, Jr., 276 U.S.

at 401–02, to a commission to consider the “public

interest” in authorizing railroad acquisitions, N. Y.

Cent. Secs. Corp. v. United States, 287 U.S. 12, 24–25

(1932), to a national coal commission to set “just and

equitable” prices that were in the “public interest,”

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381,

387, 397 (1940), to the Federal Communications

Commission to regulate radio stations when the

“public convenience, interest, or necessity requires,”

Nat’l Broad. Co. v. United States, 319 U.S. 190, 214

(1943), and to the President to set “fair and equitable”

prices under the Emergency Price Control Act, Yakus

v. United States, 321 U.S. 414, 427 (1944).

This trend has persisted, even in more recent years.

For one, the Court in Mistretta considered and found

constitutional the delegation of authority to the

Sentencing Commission. 488 U.S. at 374. While

Congress granted the Commission ample discretion in

making the Sentencing Guidelines, that did not mean

the act was unconstitutional: “our cases do not at all

suggest that delegations of this type may not carry

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with them the need to exercise judgment on matters of

policy.” Id. at 377–78. A later delegation to the

Attorney General to set temporary schedules of

controlled substances “necessary to avoid an imminent

hazard to the public safety” was proper. Touby v.

United States, 500 U.S. 160, 165–67 (1991). And the

Court upheld a delegation of authority to the EPA to

establish national air standards that were “requisite

to protect public health.” Whitman, 531 U.S. at 473.

“Requisite” meant “sufficient, but not more than

necessary,” and, because similar standards had been

considered and upheld, the delegation fit “comfortably

within the scope of discretion permitted by our

precedent.” Id. at 473, 475–76. 2

On only two occasions—both in 1935 as part of its

resistance to New Deal legislation—has the Court

found a violation of the nondelegation doctrine. In one,

the delegation was to the President to prohibit the

transportation of petroleum. Panama Refin. Co. v.

Ryan, 293 U.S. 388, 406 (1935). But that statute gave

2 Indeed, one of the “precedents” considered in Whitman was a

challenge to another provision of the OSH Act in Indus. Union

Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607 (1980): the

“requisite” limitations “also resemble the [OSH Act] provision

requiring 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’—which the Court upheld in [Industrial Union], and

which even then-Justice Rehnquist, who alone in that case

thought the statute violated the nondelegation doctrine, would

have upheld if, like the statute here, it did not permit economic

costs to be considered.” Whitman, 531 U.S. at 473–74 (internal

citations omitted). See also 29 U.S.C. § 655(b)(5); Indus. Union,

448 U.S. at 646 (plurality opinion); id. at 671 (Rehnquist, J.,

concurring in the judgment).

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no limitation or guidance on how the President was to

regulate oil transportation: “So far as this section is

concerned, it gives to the President an unlimited

authority to determine the policy and to lay down the

prohibition, or not to lay it down, as he may see fit.”

Id. at 415. And in the other, the President had the

ability to regulate nearly the whole economy by merely

promoting “fair competition.”

A.L.A. Schechter

Poultry Corp. v. United States, 295 U.S. 495, 530

(1935). Such a “sweeping delegation” had no support

in caselaw:

the act’s delegation was “without

precedent” as it authorized the President to create

rules of conduct, meaning his discretion to essentially

enact laws was “virtually unfettered.” Id. at 539, 541–

42.

B.

Before applying the “intelligible principle” test to

the OSH Act, we must consider the context of the Act,

as it sets the stage for our analysis. See Am. Power &

Light, 329 U.S. at 104–05. Congress passed the OSH

Act in 1970, see Pub. L. 91-596, 84 Stat. 1590 (1970),

finding that “personal injuries and illnesses arising

out of work situations” imposed a substantial burden

on the economy, 29 U.S.C. § 651(a). The overarching

goal of the Act is therefore “to assure so far as possible

every working man and woman in the Nation safe and

healthful working conditions and to preserve our

human resources.” Id. § 651(b). It then lays out several

specific purposes for the Act, including reducing

workplace-safety hazards, increasing research into

better safety standards, encouraging states to improve

their own safety standards, and providing appropriate

reporting procedures. Id.

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To accomplish these purposes, the Act authorizes

the Secretary of Labor to set occupational safety and

health standards, id. § 651(b)(3), a “standard which

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,” id. § 652(8) (emphasis added). This

definition is the main “statutory criteria” providing

“direction” to OSHA’s promulgation of permanent

safety standards and national consensus standards

under § 655(a) and (b). See Indus. Union Dep’t, AFLCIO v. Am. Petroleum Inst., 448 U.S. 607, 640 n.45

(1980) (plurality opinion). OSHA “may” promulgate

and modify those standards via the prescribed process

when it determines a rule is needed “in order to serve

the objectives of this chapter,” 29 U.S.C. § 655(b), (b)(1),

and it may grant variances only under specific

circumstances, id. § 655(b)(6). Then there are specific

procedures described in the Act, with checks and

balances, for adopting these standards—“a rigorous

process that includes notice, comment, and an

opportunity for a public hearing.” See Nat’l Fed. of

Indep. Bus. v. Dep’t of Labor, 142 S. Ct. 661, 663 (2022)

(NFIB). For example, interested persons have 30 days

post-promulgation to submit comment, OSHA must

adopt the rule within 60 days, and then parties may

again file written objections and obtain a hearing. 29

U.S.C. § 655(b)(1)–(3).

Individuals subject to these standards must comply

with them. Employers must provide a workplace free

from recognized hazards, and they must comply with

the agency’s occupational safety and health standards.

Id. § 654. Employees are similarly obligated to comply

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with standards applicable to them. Id. If a violation

occurs, the agency has the authority to issue citations.

Id. § 658. The Act also sets out specific civil penalties

or fines for violations. See id. § 666. But certain serious

infringements, including those causing death to an

employee, can lead to imprisonment. Id. § 666(e)–(g).

We also do not perform our review of the Act’s

provisions on a blank slate, for the Supreme Court has

previously considered, and construed, the “reasonably

necessary or appropriate” language. Prior to

Industrial Union, OSHA interpreted that language as

having “no legal significance or at best merely

requir[ing] that a standard not be totally irrational.”

Indus. Union, 448 U.S. at 639 (plurality opinion). But

Industrial Union changed the calculus. There, a

plurality of the Court interpreted the OSH Act as

requiring the agency, before issuing any permanent

safety standard, “to make a threshold finding that a

place of employment is unsafe—in the sense that

significant risks are present and can be eliminated or

lessened by a change in practices.” Id. at 642. Because

the agency did not make such findings and “did not

even attempt to carry its burden of proof” when

promulgating a standard that lowered the permissible

level of benzene exposure, a plurality of the Court

rejected the permanent safety standard at issue. Id. at

653–59. Justice Rehnquist concurred in the judgment

but opined that the “to the extent feasible” language of

a separate provision, § 655(b)(5), violated the

nondelegation doctrine. Id. at 682–88. In his opinion,

this “feasibility” requirement did nothing “other than

render what had been a clear, if somewhat unrealistic,

standard largely, if not entirely, precatory.” Id. at 681–

82.

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Following Industrial Union, the Court cited

approvingly OSHA’s attempts to make that threshold

determination that a particular safety issue carried a

significant risk of harm. See Am. Textile Mfrs. Inst.,

Inc. v. Donovan, 452 U.S. 490, 505–06 & n.25 (1981)

(Cotton Dust); see also id. at 513 n.32 (“[A]ll

[§ 655(b)(5)] standards must be addressed to

‘significant risks’ of material health impairment.”).

While we have not yet done so, other circuits have held

that Cotton Dust “adopted the significant risk

requirement.” See, e.g., Nat’l Mar. Safety Ass’n, 649

F.3d at 750 n.8. Finally, the Court has limited the

“reasonably necessary or appropriate” standard to

those that are “economically or technologically

feasible.” See Cotton Dust, 452 U.S. at 513 n.31 (“[A]ny

standard that was not economically or technologically

feasible would a fortiori not be ‘reasonably necessary

or appropriate’ under the Act.”).

C.

Considering this statutory context and Supreme

Court caselaw, we hold that the OSH Act’s “reasonably

necessary or appropriate” standard passes the

“intelligible principle” test and is therefore

constitutional. To begin, the OSH Act sets forth a host

of principles, purposes, and goals that the agency must

consider or fulfill. See 29 U.S.C. § 651(b). Then, the Act

directs OSHA to set standards to further these

purposes—the agency “shall” establish standards and

modify them as necessary to serve the needs of the Act.

Id. § 655(a), (b)(1). These goals guide the agency’s

decision-making in setting its standards, and they

provide “overarching constraints” on its discretion.

Mistretta, 488 U.S. at 376. In particular, these

guidelines limit OSHA’s oversight to the workplace

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and restrict its standards to those that facilitate

workplace safety, not, for example, public health

policy in general. See NFIB, 142 S. Ct. at 665 (“The Act

empowers the Secretary to set workplace safety

standards, not broad public health measures.”).

Next, the Act significantly limits OSHA’s discretion

in deciding whether it may issue a particular

occupational safety and health standard. OSHA

cannot merely issue any standard it likes; rather, a

safety risk must be one that “requires” some action for

a safe workplace. 29 U.S.C. § 652(8). In this context,

“requires” substantially limits the agency’s discretion.

See Whitman, 531 U.S. at 475–76 (noting that a

standard that is “‘requisite,’ that is, not lower or

higher than is necessary . . . fits comfortably within

the scope of discretion permitted”). The risk involved

must be sufficient to warrant OSHA’s involvement.

Thus, any occupational safety and health standard

that the agency issues is one that is genuinely needed

to protect the safety of workers.

Further, OSHA must take action and issue

standards in response to safety issues. Look to § 655(b),

the section at issue here. While the Act states that

OSHA “may” promulgate standards in the prescribed

manner, this “may” is obligatory, not discretionary—

in this context, it means “must” or “shall.” See The

American Heritage Dictionary of the English

Language 808 (1969) (defining “may” as pertinent here

as “[o]bligation or function, with the force of must or

shall, in statutes, deeds, and other legal documents:

‘Congress may determine the time of choosing the

electors.’”); see also Keen v. Helson, 930 F.3d 799, 802

(6th Cir. 2019) (“When interpreting the words of a

statute, contemporaneous dictionaries are the best

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place to start.”). That is a substantial and twofold

limitation on OSHA’s discretion: OSHA must act when

a particular hazard “requires” its action, and it cannot

issue any standard when the risk does not rise to that

level. This easily comports with the Supreme Court’s

interpretation of the statute as requiring OSHA to

“make a threshold finding that a place of employment

is unsafe—in the sense that significant risks are

present and can be eliminated or lessened by a change

in practices.” Indus. Union, 448 U.S. at 642 (plurality

opinion); see also Cotton Dust, 452 U.S. at 505–06 &

n.25. The agency has no discretion in determining

whether to set these permanent safety standards—it

must do so.

As for the standards themselves, OSHA may adopt

only those conditions that are “reasonably necessary

or appropriate” to improve workplace safety. These

standards do not need to completely resolve the issue,

for “‘safe’ is not the equivalent of ‘risk-free.’” Indus.

Union, 448 U.S. at 642 (plurality opinion). Thus, a

condition is “reasonably necessary or appropriate” in

the context of the OSH Act if it is something that

OSHA can do to ameliorate or mitigate, but not

necessarily eliminate, an unsafe condition. See id.

Contemporaneous dictionaries also demonstrate the

contours of the three terms: “Reasonable” is “[w]ithin

the bounds of common sense”; “necessary” is “[n]eeded

for the continuing existence or function of something;

essential; indispensable”; and “appropriate” is

“[s]uitable for a particular person, condition, occasion,

or place; proper; fitting.” The American Heritage

Dictionary of the English Language 64, 877, 1086

(1969). So standards that are “necessary or

appropriate to provide safe or healthful employment”

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are those that are needed for or suited to the purpose

of keeping workers safe in their employment. That

they be “reasonabl[e]” means that they need to be

largely feasible or within the bounds of common sense.

Cf. Anderson v. Messinger, 146 F. 929, 943 (6th Cir.

1906) (noting the difference between “reasonably

necessary” and “absolutely necessary”). This comports

with other language in the Act requiring OSHA to

consider the economic or technological feasibility of

standards. See Cotton Dust, 452 U.S. at 513 n.31

(“[A]ny standard that was not economically or

technologically feasible would a fortiori not be

‘reasonably necessary or appropriate’ under the Act.”).

So while we agree with our sister circuits that Cotton

Dust adopted the limitations espoused in Industrial

Union, see Nat’l Mar. Safety Ass’n, 649 F.3d at 750 n.8,

we note that there was good reason for it to have done

so: the “feasibility” and “significant risk” constructions

are rooted in the language of the Act itself, not, for

example, in any agency-imposed limitation. Whitman,

531 U.S. at 472–73. In short, “reasonably necessary or

appropriate,” in context, means that the standards

adopted should be needed to improve safety but not to

the exclusion of all else. This is not a broad,

discretionary purpose statement but a real standard

to guide the agency’s actions.

This limit on Congress’s delegation is materially

similar to those previously considered by the Supreme

Court. And the Court has upheld those delegations

time and again. See, e.g., Sunshine Anthracite, 310 U.S.

at 387 (“just and equitable”); Nat’l Broad. Co., 319 U.S.

at 215–16 (“public interest”); Yakus, 321 U.S. at 420–

23 (“fair and equitable”); Touby, 500 U.S. at 163

(“necessary to avoid an imminent hazard to the public

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safety”); Whitman, 531 U.S. at 472–76 (“requisite to

protect the public health”). All these standards

provided ample discretion to an agency or coordinate

branch to deal with the issue as it saw fit—but each

also set reasonable guidelines as to how the entity

must respond to the problem.

So too here. Congress has directed that OSHA must

set standards to provide for public health in the

workplace when its action is required. OSHA, as the

entity with greater experience in health and safety,

then has discretion to determine those standards. In

this “complex” area with “ever changing and more

technical problems,” Congress may seek OSHA’s

assistance. Mistretta, 488 U.S. at 372. But while

Congress gave OSHA significant discretion, that does

not render the delegation unconstitutional. The

agency’s standards must still be reasonably needed—

that is, not more or less stringent than is needed to

respond to, but not eliminate, a safety risk in the

workplace. Id. at 377; Whitman, 531 U.S. at 472–76.

These standards do not exist in a vacuum: they must

further the policy objectives of the Act, thereby fitting

within the “hierarchy” developed by Congress.

Mistretta, 488 U.S. at 377. And Congress, not OSHA,

has detailed the penalties that apply to violations—a

crucial factor in the nondelegation analysis. See

Grimaud, 220 U.S. at 517 (“[Congress] could give to

those who were to act under such general provisions

‘power to fill up the details’ by the establishment of

administrative rules and regulations, the violation of

which could be punished by fine or imprisonment fixed

by Congress, or by penalties fixed by Congress, or

measured by the injury done.”). Therefore, Congress

has indeed laid out the general policy (a safe working

18a

environment), the agency to apply it (OSHA), and the

boundaries of that authority (necessary standards to

mitigate significant risks of harm). Mistretta, 488 U.S.

at 372–73. The Act describes the agency’s task

(protecting workers from unsafe conditions), provides

instructions

(requiring

standards

reasonably

necessary and appropriate to respond to those risks),

and guides the agency’s discretion in doing so. See

Consumers’ Rsch. v. 67 F.4th at 788; Gundy, 139 S. Ct.

at 2123 (plurality opinion). In short, the agency’s

discretion is not unbridled. Rather, because the

delegation of power in the OSH Act fits within the

delegations previously upheld by the Court, the

delegation is constitutional.

Finally, as previously noted, our holding finds

support in the caselaw of our sister circuits, two of

which have concluded that the OSH Act satisfies the

nondelegation doctrine. In Blocksom & Co. v. Marshall,

the Seventh Circuit rejected such a challenge,

concluding that the plaintiff’s arguments were

“without persuasive merit.” 582 F.2d at 1125–26. It

was not necessary for the Act to prescribe the exact

regulations OSHA could promulgate; instead, it was

sufficient that “Congress has chosen a policy and

announced general standards which guide the

Secretary in establishing specific standards to assure

the safest and healthiest possible working

environments, and which enable the courts and the

public to test the Secretary’s faithful performance of

that command.” Id. at 1126. The D.C. Circuit similarly

rejected this challenge in National Maritime, as the

delegation of power to OSHA was “no broader” than

other delegations upheld by the Supreme Court. 649

F.3d at 755–56. “In light of these precedents, one

19a

cannot plausibly argue that [the OSH Act’s] standard

is not an intelligible principle.” Id. at 756 (citation

omitted).

D.

Allstates and the dissent resist this, contending that

the delegation here is similar to the two cases in which

the Supreme Court held an act violated the

nondelegation doctrine. But Panama Refining and

A.L.A. Schechter Poultry do not alter our conclusion.

While these two cases are binding on us, we must not

read them in isolation, overlooking the many times

that the Court upheld delegations of authority.

Instead, we must also follow the “broad leeway” that

Congress has under the Court’s entire nondelegation

jurisprudence. See Consumers’ Rsch., 67 F.4th at 788

(citing Whitman, 531 U.S. at 474–75). Even so, the

OSH Act satisfies the analysis in these cases, for

Congress has required OSHA to make a “finding” and

has “set up a standard” governing the agency’s action.

Panama Refin., 293 U.S. at 415; accord Shechter

Poultry, 295 U.S. at 534–35. OSHA must set standards

when certain unsafe “conditions” exist that “require[]”

action, and those standards must be “reasonably

necessary or appropriate”—that is, needed to

ameliorate those unsafe conditions but not to the

exclusion of all else. 29 U.S.C. §§ 652(8), 655(b)(1).

This standard passes muster when considering the

sum of the Supreme Court’s jurisprudence.

Moreover,

these

two

cases

are

readily

distinguishable from the present case. For one, this

case does not involve a delegation with no standards,

as in Panama Refining. Congress aptly declared what

purposes OSHA must consider and how the agency’s

20a

standards must be reasonably needed to respond to

Congress’s concerns. Thus, Congress has declared a

policy, established a standard, and laid down a rule.

Cf. Mistretta, 488 U.S. at 372–73. And this is

distinguishable from the “virtually unfettered”

delegation in Schechter Poultry. There, the President

could regulate essentially the entire economy and

make whatever law he desired so long as it promoted

“fair competition”—a term that was not defined in the

act and that incorporated essentially all the act’s

purposes. The breadth of the delegation needed a

corresponding level of guidance that was missing in

the act. By contrast, the OSH Act is cabined to

workplace-safety standards—it does not allow OSHA

to go beyond that. See NFIB, 142 S. Ct. at 665. Further,

the “reasonably necessary or appropriate” guidance is

far more restrictive than simply promoting “fair

competition.” In short, OSHA does not have “virtually

unfettered” discretion, cf. Schechter Poultry, 295 U.S.

at 542, for its discretion is limited to the “hierarchy”

established by Congress, Mistretta, 488 U.S. at 377.

For that reason, it instead resembles other

constitutional delegations, not Panama Refining and

Schechter Poultry. These two cases—the only times

the Supreme Court has determined a nondelegation

violation has occurred—do not control here. 3

Allstates also argues that this case implicates the “major

questions” doctrine, but this is not a major-questions case. That

doctrine applies in “‘extraordinary cases’ . . . in which the ‘history

and the breadth of the authority that [the agency] has asserted,’

and the ‘economic and political significance’ of that assertion,

provide a ‘reason to hesitate before concluding that Congress’

meant to confer such authority.” West Virginia v. Env’t Prot.

Agency, 142 S. Ct. 2587, 2608 (2022) (quoting FDA v. Brown &

3

21a

Further, while it is “true enough that the degree of

agency discretion that is acceptable varies according

to the scope of the power congressionally conferred,”

Whitman, 531 U.S. at 475, and Congress has allowed

OSHA to regulate much of the economy, we cannot

conclude that the OSH Act confers too much discretion.

For one, the Act substantially limits OSHA’s

discretion, meaning that the “degree of agency

discretion” here is not so great. Id. The text and overall

purposes of the Act substantially limit OSHA’s playing

field to the “workplace.” Cf. NFIB, 142 S. Ct. at 665.

And the threshold limitations discussed in Industrial

Union and adopted in Cotton Dust are rooted in the

language of the Act. When accepting those limitations

(as we should) and reading them in context with the

rest of the OSH Act, the Act clearly delineates when

and how the agency must act. See, e.g., 29 U.S.C. § 655.

A health risk must require a standard which should be

both reasonably feasible and no more than necessary

to mitigate a safety risk. See id. at §§ 652(8), 655(a),

Williamson Tobacco Corp., 529 U.S. 120, 159–60 (2000) (second

alteration in original)). In short, it applies when the question

presented is “whether Congress in fact meant to confer the power

the agency has asserted.” Id. But Allstates does not contend that

OSHA has taken a specific action that exceeds the power that

Congress delegated to OSHA. Cf. id. at 2610–16 (holding that

Congress did not give the EPA the authority to devise emissions

caps because the statute never gave “clear congressional

authorization” to do so); NFIB, 142 S. Ct. at 665 (holding that

OSHA’s vaccine mandate exceeded its delegated authority).

Rather, its argument is that the OSH Act itself is

unconstitutional because Congress’s delegation is improper—in

other words, that Congress was not specific enough in its

delegation, rather than was silent about whether it delegated a

particular power.

22a

(b)(1); cf. Whitman, 531 U.S. at 475–76. This falls

comfortably within the limitations accepted by the

Supreme Court. See Yakus, 321 U.S. at 427 (collecting

cases).

In addition, the Supreme Court has consistently

upheld analogous delegations even when the “scope of

the power congressionally conferred” is similarly large.

Whitman, 531 U.S. at 475. Many prior cases addressed

broad delegations implicating large and important

areas of American life. For example, railroad, coal, and

radio were ubiquitous in American society in the 1930s

and 1940s, yet the Court permitted broad regulatory

delegations over those industries. See N. Y. Cent. Secs.

Corp., 287 U.S. at 24–25; Nat’l Broad. Co., 319 U.S. at

214; Sunshine Anthracite, 310 U.S. at 387. And it is

impossible to say that OSHA’s sphere of regulation is

greater than, or even equal to, the delegation of

authority upheld in Yakus—to allow the President to

set “fair and equitable” prices for any product in the

national economy. See 321 U.S. at 427. 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. See Whitman, 531 U.S. at 475.

The mere fact that the Act applies to a large portion of

the American economy does not transform this

constitutional limitation into an unconstitutional one.

III.

In sum, the OSH Act provides an overarching

framework to guide OSHA’s discretion, and the Act’s

standards comfortably fall within those limits

previously upheld by the Supreme Court. So the Act

23a

passes constitutional muster. We therefore hold the

standard prescribed by the OSH Act to be a

constitutional delegation of authority. “To require

more would be to insist on a degree of exactitude which

not only lacks legal necessity but which does not

comport with the requirements of the administrative

process.” Sunshine Anthracite, 310 U.S. at 398.

We affirm the judgment of the district court.

24a

DISSENT

NALBANDIAN, Circuit Judge, dissenting. For 88

years, federal courts have tiptoed around the idea that

an act of Congress could be invalidated as an

unconstitutional delegation of legislative power. The

majority continues the trend. But, in my view, that

streak should end today. In the Occupational Safety

and Health Act (“OSHA”), Congress granted the

Secretary of Labor nearly unfettered discretion in

fashioning permanent occupational health and safety

standards. Because OSHA’s permanent standards

provision (1) does not require any preliminary

factfinding or a particular situation to arise to trigger

agency action and (2) does not contain a standard that

sufficiently guides the exercise of the broad discretion

OSHA delegates to the Secretary, the provision does

not have an intelligible principle. So, under Supreme

Court precedent, it violates the nondelegation doctrine.

I.

“[I]t is always important in a case of this sort to

begin with the constitutional text and the original

understanding, which are essential to proper

interpretation of our enduring Constitution.” Free

Enter. Fund v. Pub. Co. Acct. Oversight Bd., 537 F.3d

667, 688 (D.C. Cir. 2008), (Kavanaugh, J., dissenting),

aff’d in part, rev’d in part and remanded, 561 U.S. 477

(2010). Fourteen words start us off: “All legislative

Powers herein granted shall be vested in a Congress of

the United States[.]” U.S. Const. art. I, § I.

Article I vests the “Senate and House of

Representatives” (and them alone) with “[a]ll

legislative powers.” Id. That means that Congress, not

some official in the Executive Branch, creates laws.

25a

And only after, does the Executive come in and do its

job—it may enforce the laws, not create them. As

James Madison and the public originally understood,

any attempt at “alienating the powers of the House . . .

would be a violation of the Constitution.” Ilan Wurman,

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

1506 (2021) (quoting 3 Annals of Congress 238–39

(1791) (James Madison)). Indeed, proceeding

otherwise would defy the constitutional separation of

powers.

Of all “principle[s] in our Constitution,” none is

“more sacred than . . . that which separates the

legislative, executive and judicial powers.” Myers v.

United States, 272 U.S. 52, 116 (1926) (quoting 1

Annals of Congress 581 (1791) (James Madison)); see

Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892)

(“That [C]ongress cannot delegate legislative power to

the president is a principle universally recognized as

vital to the integrity and maintenance of the system of

government ordained by the [C]onstitution.”). And

perhaps that’s because of the democratic values it

protects.

The Framers understood that lawmaking involved

“hard choices.” Tiger Lily, LLC v. U.S. Dep’t of Hous.

& Urb. Dev., 5 F.4th 666, 674 (6th Cir. 2021) (Thapar,

J., concurring). So they placed the legislative power

into the hands of the branch that was most

accountable to the people. And if any problems arose,

“the people could respond, and respond swiftly” to

remedy any “misuse[]” of power. Id.

Along with accountability was “the bedrock

principle that dividing power among multiple entities

and persons helps protect individual liberty.” PHH

26a

Corp. v. Consumer Fin. Prot. Bureau, 881 F.3d 75, 187

(D.C. Cir. 2018) (Kavanaugh, J., dissenting),

abrogated by Seila L. LLC v. Consumer Fin. Prot.

Bureau, 140 S. Ct. 2183 (2020); see The Federalist No.

51 (James Madison) (C. Rossiter ed. 1961) (“[The]

separate and distinct exercise of the different powers

of government . . . is admitted on all hands to be

essential to the preservation of liberty[.]”). And it does

so by slowing down the ability to legislate.

“Bicameralism and presentment make lawmaking

difficult by design.” Dep’t of Transp. v. Ass’n of Am.

R.Rs., 575 U.S. 43, 61 (2015) (Alito, J., concurring)

(cleaned up). The Framers thought that these drawnout processes not only limited the government’s ability

to restrict fundamental freedoms, but also promoted

deliberation and safeguarded unpopular minorities

from the tyranny of the majority. See The Federalist

No. 73 (Alexander Hamilton), No. 51 (James Madison).

In all, the separation of powers shields the public’s

interests in accountability and individual liberty. And

Article I is one way to ensure that separation.

A.

Born out of Article I was what courts call the

nondelegation doctrine. It stands for a simple

proposition—Congress alone has legislative powers,

and it cannot delegate them away. With that in mind,

the Supreme Court has applied the doctrine to clarify

how courts can determine whether a power delegated

to the executive is actually legislative (and thus a

violation of Article I).

Keeping in mind the fundamental, Founding

principle that “the legislature makes, the executive

executes, and the judiciary construes the law,” courts

27a

have adjudicated Congress’s ability to delegate power.

Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 46, 50

(1825) (upholding a delegation of power to federal

courts to regulate their own procedures and holding

that state legislatures could not interfere with that

delegation). That said, within a few decades after

ratification, Congress did “commit something to the

discretion of the other [Branches].” Id. at 46 (noting

that court determinations of “the precise boundary of

this power is a subject of delicate and difficult

inquiry”). But Chief Justice Marshall and the Court

understood that Congress could not delegate “powers

which are strictly and exclusively legislative.” Id. at 42.

Still, they allowed Congress to delegate other “powers

which the legislature may rightfully exercise itself.” Id.

at 43. As Chief Justice Marshall went on to say, the

“line” separating “important subjects, which must be

entirely regulated by the legislature itself,” and “those

of less interest,” which allow others to “fill up the

details” in a “general provision,” was not “exactly

drawn.” Id. So the Court began to try to clarify where

that line fell.

At first, the Supreme Court focused on the “extent”

or “character of the power” that Congress conferred. Id.

Delegating “the making of law” itself was off limits.

Marshall Field & Co., 143 U.S. at 693; see Buttfield v.

Stranahan, 192 U.S. 470, 496 (1904) (denying that

Congress may “invest administrative officials with the

power of legislation”). But the Supreme Court still

permitted Congress to vest others with the “authority

or discretion as to [a law’s] execution.” Marshall Field

& Co., 143 U.S. at 693–94 (citation omitted). Indeed,

for over a century after the Founding, courts allowed

“Congress . . . to use officers of the [E]xecutive branch

28a

within defined limits, to secure the exact effect

intended by its acts of legislation.” J.W. Hampton, Jr.,

& Co. v. United States, 276 U.S. 394, 406 (1928)

(emphases added) (collecting cases). And importantly,

those “defined limits” were what courts called

“intelligible principle[s].” Id. at 406, 409.

Indeed, Congress fashioned laws that included

various constraints to guide the Executive on what it

could and couldn’t do. For instance, some laws

required Executive officials to find facts before taking

action, and others limited Executive responses to

specific situations. See id. at 405 (noting that a statute

“provided [the President] with a body of investigators

who were to assist him in obtaining needed data and

ascertaining the facts justifying readjustments” of

foreign trade); Marshall Field & Co., 143 U.S. at 693–

94 (conditioning the President’s “duty to issue a

proclamation” on a fact-finding inquiry into whether

exports from a country were “reciprocally unequal and

unreasonable”). Other laws required the officials to

consider specified criteria before doing something. See

N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24–

25 (1932) (requiring the Interstate Commerce

Commission to consider criteria before permitting

acquisition of a railroad in the “public interest,”

including the “adequacy of transportation service,”

“economy and efficiency,” and the “best use of

transportation facilities”). And others concerned

grants of power so discrete in themselves that no more

direction from Congress was necessary. See Union

Bridge Co. v. United States, 204 U.S. 364, 366, 387

(1907) (granting the Secretary of War the authority to

provide bridge owners with notice and a reasonable

amount of time to make structural changes to their

29a

bridges); see also Tagg Bros. & Moorhead v. United

States, 280 U.S. 420, 435 n.3 (1930) (requiring the

Secretary of Agriculture to go through a “full hearing”

before establishing “just and reasonable rates and

charges” for “the furnishing of stockyard services”

(citation omitted)).

Long story short, “in every case in which the

question [of delegation was] raised, the Court . . .

recognized that there are limits of delegation which

there is no constitutional authority to transcend.”

Panama Refin. Co. v. Ryan, 293 U.S. 388, 430 (1935).

And what confined those delegations in each case was

some sort of limitation that someone outside the

Legislative Branch had to abide by. Id. Those

constraints became known as a law’s “intelligible

principle.” J.W. Hampton, Jr., & Co., 276 U.S. at 409.

B.

But it wasn’t until 1935 that the Court found that

Congress had pushed its limits. In Panama Refining v.

Ryan, the Court held for the first time that a

congressional grant of power was an unconstitutional

delegation. 293 U.S. at 430, 433. Congress had

delegated regulatory authority over the transportation

of petroleum and petroleum products to the President.

Id. at 414–15. In evaluating whether this delegation

was constitutional, the Court “look[ed] to the statute”

to test whether Congress violated Article I when

delegating powers to the Executive Branch. Id. at 415.

Importantly, the Court provided some considerations

to determine whether a congressional act “shall be

prohibited by law [a]s obviously one of legislative

policy”:

30a

Accordingly, we look to the statute to see whether

the Congress has declared a policy with respect to

that subject; whether the Congress has set up a

standard for the President’s action; whether the

Congress has required any finding by the

President in the exercise of the authority to enact

the prohibition.

Id.

Keeping these considerations in mind, the Panama

Refining Court found that the law had no “intelligible

principle” by which the President was “directed to

conform.” Id. at 430 (citation omitted). Although

Congress provided a “general outline of policy” on the

“transportation of petroleum or petroleum products,”

id. at 417, Congress did not “lay[] down [a] policy of

limitation” or “policy for the achievement” of the

“conservation of natural resources,” id. at 418. Instead,

in “general terms,” it seemed as if the “broad outline

[wa]s simply an introduction of the act, leaving the

legislative policy as to particular subjects to be

declared and defined . . . by . . . subsequent sections.”

Id. But the law didn’t further define the general policy.

Id. at 430.

Indeed, the law “laid down no rule” on what actions

the President had to make if certain situations arose,

id., and “nothing as to the circumstances or conditions”

that would prompt him to prohibit transportation, id.

at 417. No “determination as to any facts or

circumstances” had to be made, and no situation had

to come about before the President could exercise

discretion under the law. Id. at 418.

Instead, Congress vested the President with the

discretion

to

make

petroleum-transportation

31a

standards and enforce accordingly. Id. at 420–21. And

Congress didn’t provide him with a standard to guide

his discretion. Id. Said otherwise, Congress did not

require the President to consider a “primary

standard”—some set of criteria or considerations—

that would limit his discretion in “‘fill[ing] up the

details’ under . . . general provisions.” Id. at 426

(quoting Wayman, 23 U.S. (10 Wheat.) at 43).

Contrary to other acts of legislation, the law did not

“legislate[] on the subject as far as was reasonably

practicable.” Id. at 427 (quoting Buttfield, 192 U.S. at

496). Rather, Congress’s wide grant of discretion

allowed the President to choose “[a]mong the

numerous and diverse objectives broadly stated.” Id.

at 418. And so, with no factual prerequisite or

standard guiding his authority, he could act “as he

pleased” in regulating petroleum transportation. Id.

As a result, the Court held that Congress

unconstitutionally delegated its legislative power.

Soon after came A.L.A. Schechter Poultry Corp. v.

United States. 295 U.S. 495 (1935). In Schechter

Poultry, Congress delegated regulatory authority to

the President to set “codes of fair competition” in

certain trades and industries—in this case, the poultry

industry. Id. at 521–22. Before getting into the

analysis, the Court pointed out that the Constitution

gives “Congress the necessary resources of flexibility

and practicality . . . in laying down policies and

establishing standards.” Id. at 530. But the Court

explained that Congress could only delegate to

“selected instrumentalities” if Congress also

“prescribed limits and the determination of facts to

which [a] policy as declared by the Legislature [wa]s

to apply.” Id.

32a

Relying on Panama Refining, the Supreme Court

“look[ed] to the statute to see whether Congress . . .

overstepped these limitations”—that is, the Court

determined whether Congress provided an intelligible

principle by “establish[ing] the standards of legal

obligation” or whether it didn’t “by . . . fail[ing] to enact

such standards” and thereby “attempt[ing] to transfer

that [legislative] function to others.” Id. In the end, the

Court held that Congress didn’t provide an intelligible

principle. See id. at 534, 537–38 (“Congress [could not]

delegate legislative power to the President to exercise

an unfettered discretion to make whatever laws he

thinks may be needed or advisable for” a “broad range

of objectives,” including “rehabilitation and expansion

of trade or industry.”).

In finding an Article I violation, the Court turned to

two considerations also identified in Panama Refining.

The Court held that the law didn’t (1) list “rules of

conduct to be applied to particular states of fact

determined by appropriate administrative procedure.”

Id. at 541. Nor did the law (2) contain “standards [that

could guide Executive discretion], aside from the

statement of the [law’s] general aims of rehabilitation,

correction, and expansion.” Id.

Besides some general goals, no considerations

limited what the President could do. And the

Schechter Poultry Court spelled out a few reasons why

the law didn’t have an adequate standard. First, the

Court found that the law’s general “statement of the

authorized objectives,” id. at 534, was a “broad

declaration” that still left the President’s discretion

“virtually unfettered,” id. at 541–42. Next, it found

that the two procedural “condition[s]” the President

had to meet before promulgating did not limit “the

33a

permissible scope” of his regulatory authority because

they still allowed him to act “as he may see fit.” Id. at

538. And last, the Court recognized that the broad

grant of power to the President required Congress to

be more specific in how it guided the President’s

discretion. Id. at 541.

The Court noted the difference between laws

concerning smaller grants of discretion (like those

dealing with “rules of miners as to mining claims” and

“the standard height of drawbars”), and the law in

Schechter Poultry (which granted “a sweeping

delegation of legislative power” over codes affecting

the “rehabilitation and expansion of . . . trades or

industries”). Id. at 537; see id. at 539 (noting that the

delegated “authority relate[d] to a host of different

trades and industries, thus extending the President’s

discretion to all the varieties of laws which he may

deem to be beneficial in dealing with the vast array of

commercial and industrial activities throughout the

country”). The Court concluded that a delegation of

that magnitude, with no intelligible principle to limit

Executive discretion, was “unknown to our law, and . . .

utterly

inconsistent

with

the

constitutional

prerogatives and duties of Congress.” Id. at 537. Taken

together, the law in “no way limit[ed]” the “breadth of

the President’s discretion.” Id. at 538–39. So as in

Panama Refining, the law in Schechter Poultry had no

“intelligible principle” limiting the President’s

discretion. J.W. Hampton, Jr., & Co., 276 U.S. at 409;

Schechter Poultry, 295 U.S. at 551.

After Panama Refining and Schechter Poultry, at

least one thing became clear: Congress’s “general

outline of policy,” Panama Refin., 293 U.S. at 417, or

“statement of . . . general aims,” Schechter Poultry, 295

34a

U.S. at 541, was not enough to form an intelligible

principle. Knowing that, the Supreme Court began to

focus its nondelegation analysis on two considerations:

(1) “whether the Congress has required any finding by

the President in the exercise of the authority,” and (2)

“whether the Congress has set up a standard for the

President’s action.” Panama Refin., 293 U.S. at 415;

see Schechter Poultry, 295 U.S. at 530. As I’ll explain,

the intelligible principles identified throughout later

Supreme Court precedent fall into one of these two

buckets.

C.

With Panama Refining and Schechter Poultry

remaining good law, the Court has further refined the

“intelligible principle” framework. 1 Since 1935, most

1 The

Supreme Court has not held that any act of Congress

unconstitutionally delegates legislative power since those two

cases. Rather, the Court has upheld each law before it while

developing what we call the intelligible-principle test. See

generally Amy Coney Barrett, Suspension and Delegation, 99

Cornell L. Rev. 251, 318 & n.285 (2014) (describing the test as

“notoriously lax”). And at least from 1940 to 2015, it appears that

only one nondelegation challenge has been successful in lower

federal courts without being reversed on appeal. Jason Iuliano &

Keith E. Whittington, The Nondelegation Doctrine: Alive and

Well, 93 Notre Dame L. Rev. 619, 636 (2018).

Some jurists have pointed out that the test actually allows

Congress to delegate “legislative power”—but only if the

delegation is “adequately limited by the terms of the authorizing

statute.” Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 488 (2001)

(Stevens, J., concurring in part and concurring in the judgment);

see Dep’t of Transp., 575 U.S. at 86 (Thomas, J., concurring in the

judgment) (“Our reluctance to second-guess Congress on the

degree of policy judgment is understandable; our mistake lies in

assuming that any degree of policy judgment is permissible when

it comes to establishing generally applicable rules governing

35a

(if not all) nondelegation cases have involved

legislation that has granted the Executive some form

of policy-making power. And each time that’s

happened, the Supreme Court has upheld the

legislation by finding an intelligible principle in two

ways—two ways that track the two considerations

present in Panama Refining and Schechter Poultry.

First, a “finding by the President in the exercise of

the authority to enact the prohibition.” Panama Refin.,

293 U.S. at 415. The Supreme Court has upheld laws

that require certain situations or fact-finding to occur

before the Executive can act under a statute. See Opp

Cotton Mills v. Adm’r of Wage & Hour Div. of Dep’t of

Lab., 312 U.S. 126, 143–45 (1941) (upholding a law

that allowed the Executive to fix the minimum wages

contingent on “basic facts to be ascertained

administratively” while considering a list of

private conduct.”). And others have noted that “the Constitution

does not speak of ‘intelligible principles’” in the first place, which

prompts the question of when the Supreme Court will revisit the

nondelegation doctrine again. Whitman, 531 U.S. at 488 (Thomas,

J., concurring) (“On a future day, however, I would be willing to

address the question whether our delegation jurisprudence has

strayed too far from our Founders’ understanding of separation

of powers.”); see, e.g., Gundy v. United States, 139 S. Ct. 2116,

2139 (2019) (Gorsuch, J., dissenting) (“Th[e] mutated version of

the ‘intelligible principle’ remark has no basis in the original

meaning of the Constitution, in history, or even in the decision

from which it was plucked.”); Paul v. United States, 140 S. Ct.

342, 342 (2019) (Mem.) (Kavanaugh, J., statement respecting the

denial of certiorari) (“Justice Gorsuch’s thoughtful Gundy opinion

raised important points that may warrant further consideration

in future cases.”); Michigan v. EPA, 576 U.S. 743, 763 (2015)

(Thomas, J., concurring) (“[W]e seem to be straying further and

further from the Constitution without so much as pausing to ask

why.”).

36a

“prerequisites” and “further requirements”); Radio

Corp. of Am. v. United States, 341 U.S. 412, 416 & n.5

(1951) (involving a law that required a commission “to

promulgate standards for transmission of color

television that result in rejecting all but one of the

several proposed systems” “as public convenience,

interest, or necessity required]” but only “given a

justifiable fact situation”).

Second, “a standard.” Panama Refin., 293 U.S. at

416. When a law does not condition the Executive’s

grant of regulatory authority on a set of facts, the

Supreme Court has looked for a standard. Indeed, a

law would be unconstitutional if “an absence of

standards” makes it “impossible in a proper

proceeding to ascertain whether the will of Congress

has been obeyed.” Yakus v. United States, 321 U.S. 414,

426 (1944). With that in mind, any standard must be

“sufficiently definite and precise” so as “to enable

Congress, the courts and the public to ascertain

whether the [Executive official] . . . has conformed to

those standards.” Id.; Opp Cotton Mills, 312 U.S. at

144; see Gundy, 139 S. Ct. at 2129 (plurality) (“The

Court has stated that a delegation is permissible if

Congress has made clear to the delegee the general

policy he must pursue and the boundaries of his

authority.” (cleaned up)). And in making an

assessment, “standards need not be tested in isolation.”

Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946).

Courts can “derive much meaningful content from the

purpose of the [legislation], [the] factual background

and the statutory context in which the[] [standards]

appear.” Id.

After Schechter Poultry, broad purpose statements

that granted wide discretion and general phrases in a

37a

law were not enough to satisfy the Court’s intelligibleprinciple test. But the Court has favored standards

that specify what the Executive “must conform to,”

such as a list of “standards” and “criteria” that guide

regulation. Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381, 397–98 (1940) (upholding a law that

allowed the Executive to “fix maximum prices” on

bituminous coal “when . . . the public interest . . .

deem[ed] it necessary in order to protect the consumer

against unreasonably high prices” while being bound

by “standards” and “criteria”); see Am. Power & Light

Co., 329 U.S. at 105 (upholding a law that allowed the

Executive to help preserve corporate structures, but

only if it complied with “a veritable code of rules”

within the law’s “express recital of evils,” “general

policy declarations,” “standards for new security

issues,” and “conditions for acquisitions of properties

and securities,” and its specification of the “nature of

the inquiries contemplated”); Nat’l Broad. Co. v.

United States, 319 U.S. 190, 204, 225–26 (1943)

(upholding a law allowing for the rejection of a

broadcasting network program for the “public interest,

convenience, and necessity” because “[t]he purpose of

the Act, the requirements it imposes, and the context of

the provision in question” provided an intelligible

principle (citation omitted) (emphasis added)).

From mandatory “factors” that the Executive must

consider to “prohibited” factors that the Executive

cannot consider, the Court has upheld delegations that

give specific guidance—guidance that the Executive

cannot disregard. Mistretta v. United States, 488 U.S.

361, 375–76 (1989) (requiring the Sentencing

Commission to form guidelines while considering,

among many things, “seven factors” of the offenses, the

38a

“specific tool” of the “guidelines system,” “three goals,”

“four ‘purposes,’” and “prohibited” factors (citation

omitted)).

Some of those required considerations might take

the form of “the latest scientific knowledge.” Whitman,

531 U.S. at 473 (requiring the Executive to set air

quality standards “[f]or a discrete set of pollutants . . .

based on published air quality criteria that reflect the

latest scientific knowledge” and “at a level that is . . .

sufficient, but not more than necessary” to “protect

public health from the adverse effects of the pollutant

in the ambient air” (citation omitted)). Whereas others

might be specific considerations or restrictions

relating to the power vested. See Touby v. United

States, 500 U.S. 160, 166–67 (1991) (allowing the

Attorney General to schedule a drug if it is “necessary

to avoid an imminent hazard to the public safety”

while also “requir[ing] [the Attorney General] to

consider . . . multiple specific restrictions,” including

“three factors” related to drug abuse, the risk to public

health, and “criteria for adding a substance to each of

the five schedules”); Yakus, 321 U.S. at 419, 427

(noting that the law provided “directions” for the

Executive, to fix prices as a “temporary wartime

measure,” but only when “consideration [is] given to

prices prevailing in a stated base period” and the

prices be “fair and equitable”).

Importantly, one other trend permeated the

development of Article I’s nondelegation requirement:

Laws that vest more power require more constraints.

To be clear, regardless of the breadth of delegation,

standards must still be “sufficiently definite and

precise,” Yakus, 321 U.S. at 426, and Congress must

still express “the boundaries of . . . delegated authority”

39a

even when “delineat[ing] [a] general policy,” Am.

Power & Light Co., 329 U.S. at 105, 113 (blessing a

statutory provision vesting a narrow scope of power to

the SEC to “ensure that the corporate structure or

continued existence of any company in a particular

holding-company system” conformed to enumerated

standards).

But the body of Supreme Court cases we have

requires more detail when Congress confers more

power. “It is true enough that the degree of agency

discretion that is acceptable varies according to the

scope of the power congressionally conferred.”

Whitman, 531 U.S. at 475 (comparing the minimal

“direction” needed to delegate the task of defining

“country elevators” to the “substantial guidance

[needed to] set[] air standards that affect the entire

national economy”); see Touby, 500 U.S. at 166

(explaining that “greater congressional specificity”

may be needed in certain contexts).

Indeed, the Court has identified some statutes that

were so narrow that they required less detail. See

Gundy, 139 S. Ct. at 2125, 2128, 2130 (explaining that

the delegation was narrow because it (1) granted “only

temporary authority,” which was “distinctly smallbore” when compared to other delegations; (2) allowed

discretion in the form of “time-limited latitude” of an

“implementation delay,” “[b]ut no more than that” “to

address . . . various implementation issues”; and (3)

“enabled the Attorney General only to address (as

appropriate) the ‘practical problems’ involving pre-Act

offenders before requiring them to register . . . [which]

was a stopgap, and nothing more” (citation omitted)

(emphases added)); Nat’l Broad. Co., 319 U.S. at 216

(interpreting “‘public interest, convenience, or

40a

necessity’ . . . by its context, by the nature of radio

transmission and reception, by the scope, character,

and quality of services” because the criterion was only

“as concrete as the . . . field of delegated authority

permi[ted]” (citation omitted)); see also Yakus, 321 U.S.

at 419, 426 (noting that a “temporary wartime” law’s

“authority to fix prices . . . to prevent inflation [wa]s

no broader than the authority” vested by other laws).

In sum, the Supreme Court, over two centuries

worth of caselaw, has developed a test to determine

whether a congressional delegation of power is

constitutional under Article I. That test is aimed at an

“intelligible principle.” J.W. Hampton, Jr., & Co., 276

U.S. at 409. And that in turn requires a court to

analyze a statute for two things: (1) a fact-finding or

situation that provokes Executive action or (2)

standards

that

sufficiently

guide

Executive

discretion—keeping in mind that the amount of detail

governing Executive discretion must correspond to the

breadth of delegated power. See Schechter Poultry, 295

U.S. at 541–42; Panama Refin., 293 U.S. at 430;

Whitman, 531 U.S. at 475. If neither of these exist,

under Supreme Court precedent, there is no

intelligible principle. Rather, that law would be an

unconstitutional grant of legislative power under

Article I.

II.

Never have we or the Supreme Court decided

whether the permanent standards provision under

OSHA constitutes an unconstitutional delegation of

power. 2 OSHA vests the Secretary of Labor with the

2 As

I later explain, the Supreme Court has only dealt with

OSHA’s “toxic materials or harmful physical agents” provision

41a

power to “set mandatory occupational safety and

health standards applicable to businesses affecting

interstate commerce.” 29 U.S.C. § 651(b)(3). And

under OSHA’s permanent standards provision, the

Secretary “may by rule promulgate, modify, or revoke

any occupational safety or health standard.” Id.

§ 655(b). If that delegation sounds like a lot of power—

it is. It gives the Secretary broad discretion to create

mandatory safe and healthy working conditions for

“every working man and woman in the Nation.” Id.

§ 651(b). And the only thing binding his discretion is

that he must believe that a standard is “reasonably

necessary or appropriate to provide safe or healthful

employment and places of employment.”

Id.

§§ 651(b)(3), 652(8) (emphasis added).

Bound by the Supreme Court’s development of the

“intelligible principle” test, I believe the delegation of

power under these provisions violates Article I. That’s

because the provisions provide (1) no fact-finding or

situation that prompts Executive action and (2) no

standard that sufficiently guides discretion on what

health and safety standards are appropriate. And

that’s even more so the case because the broad scope

of delegated power here—creating permanent

standards “for every working man and woman in the

under 29 U.S.C. § 655(b)(5). See Indus. Union Dep’t, AFL-CIO v.

Am. Petroleum Inst., 448 U.S. 607, 611 (1980). Importantly, this

was a different provision. And it didn’t take long for the Supreme

Court to note that its holding on § 655(b)(5) does not affect how

courts should interpret § 652(8)—the definition provision on

which OSHA’s permanent standards provision solely depends.

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

n.32 (1981) (explicitly leaving open “all the applications that

[§ 652(8)] might have, either alone or together with [§ 655(b)(5)]”).

42a

Nation”—demands that Congress be correspondingly

detailed in how it limits agency discretion. Id. § 651(b).

Under a faithful application of Supreme Court

precedent, Congress failed to “lay down by legislative

act an intelligible principle to which the person or body

authorized to [act] . . . is directed to conform.” J.W.

Hampton, Jr., & Co., 276 U.S. at 409.

Our “nondelegation inquiry” into OSHA begins and

ends with statutory interpretation. Gundy, 139 S. Ct.

at 2123 (“[I]ndeed, once a court interprets the statute,

it may find that the constitutional question all but

answers itself.”). To determine “whether Congress has

supplied an intelligible principle to guide the . . . use

of discretion,” we “constru[e] the challenged statute to

figure out what task it delegates and what

instructions it provides.” Id. And as described above,

we can find an intelligible principle from two

considerations: (1) a fact-finding or situational

requirement that provokes Executive action or (2)

standards that sufficiently guide Executive action. At

the same time, we assess “whether the law sufficiently

guides executive discretion to accord with Article I,”

id., which means that we look at whether “the degree

of agency discretion . . . accord[s] to the scope of the

power congressionally conferred.” Whitman, 531 U.S.

at 475.

With that framework in mind, what I look for is an

intelligible principle from the considerations set out in

Panama Refining and Schechter Poultry. And where I

look is OSHA’s provisions—few as they may be.

A.

To start, OSHA’s permanent standards provision

requires no (1) fact-finding or situation to occur before

43a

the Secretary acts. See Schechter Poultry, 295 U.S. at

541–42; Panama Refin., 293 U.S. at 417–18, 430. As

an initial matter, OSHA gives the Secretary the option

of consulting an advisory committee before

promulgating a standard, 29 U.S.C. § 655(b)(1), but it

does not require him or the committee to “obtain[]

needed data” or to determine “the facts justifying” any

changes to health and safety standards. J.W.

Hampton, Jr., & Co., 276 U.S. at 405 (emphasis added).

And even if the committee gives the Secretary

“recommendations and findings in relation to the

making of codes,” they are not binding—they “have no

sanction beyond the will of the [Secretary], who may

accept, modify, or reject them as he pleases.” Schechter

Poultry, 295 U.S. at 539. So the Secretary’s power to

regulate permanent standards is not contingent on a

fact-finding inquiry. Marshall Field & Co., 143 U.S. at

693–94. There are no “basic facts to be ascertained

administratively.” Opp Cotton Mills, 312 U.S. at 145.

And the act doesn’t limit the Secretary’s scope of

power by requiring that he only respond to “a

justifiable fact situation.” Radio Corp. of Am., 341 U.S.

at 416. No threat or harm to health or safety must

arise before the Secretary creates a standard. And

even if a threat or harm were to arise, nothing requires

that the Secretary actually combat it. See 29 U.S.C.

§ 651(b)(3) (“authorizing the Secretary of Labor to set

mandatory” standards, but not requiring him to do so);

id. § 655(b) (providing that the Secretary “may,” not

shall, “promulgate, modify, or revoke any . . . standard”

(emphasis added)).

And this is not like other provisions in OSHA that

require some sort of fact-finding. The Secretary and

other defendants point us to Benzene, a Supreme

44a

Court case interpreting another provision of OSHA to

require a fact-finding inquiry of a “significant risk of

material health impairment.” Indus. Union Dep’t,

AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 639

(1980) (“Benzene”). Importantly, that case involved the

“toxic materials or harmful physical agents” provision

in OSHA, which falls under 29 U.S.C. § 655(b)(5)—a

provision that is not at issue here. Id. at 612. A four

Justice plurality assessed “the meaning of and the

relationship between” OSHA’s toxic materials

provision and a provision that does apply in this case—

§ 652(8), “which defines a health and safety standard

as a standard that is ‘reasonably necessary and

appropriate to provide safe or healthful employment.’”

Benzene, 448 U.S. at 639 (quoting 29 U.S.C. § 652(8)).

The plurality said that § 652(8) “appl[ies] to all

permanent standards promulgated under the Act and

that it requires the Secretary, before issuing any

standard, to determine that it is reasonably necessary

and appropriate to remedy a significant risk of

material health impairment.” Id. 3

At first blush, the four-Justice plurality in Benzene

may seem to answer the question of whether the

permanent standards provision in OSHA requires

fact-finding. But no majority binds our analysis. And

as others have recognized, the Benzene case is not a

3 Ironically, the government’s stance in Benzene is the opposite of

that argued in this case. Before, the government argued that

§ 652(8) “imposes no limits on the Agency’s power, and thus would

not prevent it from requiring employers to do whatever would be

‘reasonably necessary’ to eliminate all risks of any harm from

their workplaces.” Benzene, 448 U.S. at 641. Now, the

government argues that § 652(8) serves as a limiting principle to

OSHA’s permanent standards provision.

45a

model of clarity. See, e.g., Antonin Scalia, A Note on

the Benzene Case, Am. Enter. Inst., J. on Gov. & Soc.,

July- Aug. 1980, at 25 (stating that Benzene produced

“a three-one-one-four split decision that literally

provides no conclusive answer to any legal question”).

That aside, the Supreme Court later attempted to

clarify what we can take away from Benzene. See Am.

Textile Mfrs. Inst., Inc. v. Donovan (Cotton Dust), 452

U.S. 490, 513 & n.32 (1981). Cotton Dust was the

Court’s attempt to make sense of Benzene. It noted

that § 652(8)’s “reasonably necessary or appropriate”

language “might . . . impose additional restraints” on

OSHA,” but only when combined with § 655(b)(5)’s

“toxic materials” language. 4 Id. For example, the

Court specified that only through the combination of

§ 652(8) and the toxic materials provision could the

Court get to Benzene’s “significant risk” requirement. 5

4 The

majority opinion also recognizes this clarification from

Cotton Dust. (Maj. Op. at 9 (“[A]ll [§ 655(b)(5)] standards must

be addressed to ‘significant risks’ of material health impairment.”

(quoting Cotton Dust, 452 U.S. at 513 n.32)).

5 Almost every court to have addressed whether the “significant

risk” requirement applies only uses the test in relation to OSHA’s

toxic materials standards, not its permanent safety standards.

See Pub. Citizen Health Rsch. Grp. v. U.S. Dep’t of Lab., 557 F.3d

165, 176 (3d Cir. 2009); Ala. Power Co. v. OSHA, 89 F.3d 740,

745–46 (11th Cir. 1996); Nat’l Grain & Feed Ass’n v. OSHA, 866

F.2d 717, 720, 737 (5th Cir. 1988); Forging Indus. Ass’n v. Sec’y

of Lab., 773 F.2d 1436, 1442, 1444 (4th Cir. 1985); ASARCO, Inc.

v. OSHA, 746 F.2d 483, 490, 495 (9th Cir. 1984). And the one case

where this Court mentions “significant risk” was in dicta. In re

MCP No. 165, Occupational Safety & Health Admin., Interim

Final Rule: COVID-19 Vaccination & Testing, 21 F.4th 357, 376

(6th Cir. 2021), stay application granted by Nat’l Fed’n of Indep.

46a

Id. (“In addition, if the use of one respirator would

achieve the same reduction in health risk as the use of

five, the use of five respirators was ‘technologically

and economically feasible,’ and OSHA thus insisted on

the use of five, then the ‘reasonably necessary or

appropriate’ limitation might come into play as an

additional restriction on OSHA to choose the onerespirator standard.”). Put differently, it’s the

combination of those two provisions—§ 652(8) and

§ 655(b)(5)—not the individual provisions in

themselves, that get us to a “significant risk” factfinding.

So Cotton Dust made it clear that the Supreme

Court has not answered what “substantive content”

§ 652(8) has and that Benzene did not answer that

question. Id. (citation omitted). And rather than

address the issue, it explicitly left open the question of

“all the applications that [§ 652(8)] might have, either

alone or together with [§ 655(b)(5)].” Id. Thus, the

Supreme Court has not told us what § 652(8) means or

how it works with OSHA’s permanent health and

safety standards. 6

Bus. v. Dep’t of Lab., 142 S. Ct. 661 (2022) (involving an

emergency temporary standard, not a permanent standard).

6 On that note, we have yet to address the issue, and the two

decisions of our sister circuits should not control our analysis in

this case. The D.C. Circuit has decided that Benzene’s “significant

risk” requirement applies to OSHA’s permanent standards

provision without much explanation. See Nat’l Mar. Safety Ass’n

v. OSHA, 649 F.3d 743, 750 n.8 (D.C. Cir. 2011). Rather than

analyzing OSHA’s text, the court only reasoned that OSHA’s

permanent standards provision requires a “significant risk” factfinding based on a “reading of subsequent Supreme Court

precedent” that dealt exclusively with OSHA’s “toxic materials”

47a

With that, we have to figure it out ourselves. To do

so, we must analyze whether some sort of fact-finding

requirement forms from the combination of OSHA’s

definition of a standard, 29 U.S.C. § 652(8), and its

permanent standards provision, id. § 655(b). It doesn’t.

Start with the permanent standards provision. See id.

Again, it provides that the Secretary “may,” not shall,

“promulgate, modify, or revoke any . . . standard”—it

provides nothing else. Id. And although “may” is

sometimes obligatory in a statute—and context

informs that determination—the ordinary meaning of

“may” is permissive. Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 112 (2012) (“The traditional, commonly repeated

rule is that shall is mandatory and may is

permissive[.]”).

And a host of contemporaneous

dictionary definitions confirm the permissive nature of

provision. Id. (citing Bldg. & Constr. Trades Dep’t, AFL-CIO v.

Brock, 838 F.2d 1258, 1263 (D.C. Cir. 1988) (discussing the

Supreme Court’s approach to toxic materials under OSHA)). So

its conclusion is questionable. Cf. Panama Refin., 293 U.S. at 416

(“It will be observed that each of these provisions contains

restrictive clauses as to their respective subjects. Neither relates

to the subject of [the section that was an unconstitutional

delegation].”).

Next, the Seventh Circuit addressed a challenge to the “entire

Act,” not just the permanent standards provision. Blocksom & Co.

v. Marshall, 582 F.2d 1122, 1125 (7th Cir. 1978). And the court

found an intelligible principle under OSHA by pointing to many

provisions that do not apply to the permanent standards

provision. See id. at 1125–26. So its analysis does not help us here.

All this to say, neither the Supreme Court or any circuit has

answered whether the text of the permanent standards provision

could be interpreted to also require the “significant risk” test or

some other fact-finding. That’s why today’s case matters so much.

48a

“may” in ordinary usage. 7 See Taniguchi v. Kan Pac.

Saipan, Ltd., 566 U.S. 560, 568 (2012) (“That a

definition is broad enough to encompass one sense of a

word does not establish that the word is ordinarily

understood in that sense.”); see also, e.g., Nat’l Wildlife

Fed’n v. Sec’y of U.S. Dep’t of Transp., 960 F.3d 872,

877 (6th Cir. 2020) (“The clearest case of ‘discretion’ is

when an agency doesn’t have to act—for instance, if a

statute says ‘may’ rather than ‘must’ or ‘shall.’”);

Minor v. Mechanics’ Bank of Alexandria, 26 U.S. (1

Pet.) 46, 64 (1828) (exploring the difference between

“may” and “must” and explaining that “[t]he ordinary

meaning of the language, must be presumed to be

intended, unless it would manifestly defeat the object

of the provisions”); Dawson v. Chemical Co. v. Rohm &

Haas Co., 448 U.S. 176, 201 (1980) (“The statute states

that a patentee may do ‘one or more’ of these permitted

7 See May, Random House Dictionary 886 (1967) (explaining that

“may” is used “to express possibility, opportunity, or permission”);

May, Black’s Law Dictionary 1131 (1968) (defining “may” as “[a]n

auxiliary verb qualifying the meaning of another verb by

expressing ability, competency, liberty, permission, possibility,

probability or contingency” and that “may” is construed as “shall”

or “must” only “to the end that justice may not be the slave to

grammar”); May, Webster’s Third New International Dictionary

1396 (1971) (explaining that “may” means to “be in some degree

likely to” but can mean “must” in some “deeds, contracts, and

statutes”); May, The American Heritage Dictionary of the English

Language 808 (1969) (listing multiple meanings, among them

“Possibility,” “Ability or capacity,” and “Desire or fervent wish”

but explaining that “may” can mean an “[o]bligation or function

with the force of must” in some legal documents); May, The

American College Dictionary 753 (1970) (explaining that “may” is

“used as an auxiliary to express . . . possibility, opportunity or

permission” but noting that it may mean “must” (when used not

to confer a favor, but to impose a duty)”).

49a

acts, and it does not state that he must do any of

them.”).

And context matters here. See Dubin v. United

States, 143 S. Ct. 1557, 1565 (2023) (explaining that

where there are “various definitions” to a word, “we

will look not only to the word itself, but also to the

statute and the surrounding scheme, to determine the

meaning Congress intended” (cleaned up)). Congress

knew how to use obligatory language when it wanted

to in OSHA.

For example, comparing OSHA’s permanent

standards provision to its toxic materials provision (at

issue in Benzene) shows how bare it is. Unlike the

permanent standards provision, the toxic materials

provision lists considerations and requirements. See

29 U.S.C. § 655(b)(5). It specifies that the Secretary

“shall set the standard which most adequately assures,

to the extent feasible, . . . 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. (emphasis added). And before

getting to that decision, it requires the Secretary to

base his decision on “the best available evidence,”

including “research, demonstrations, experiments,

and such other information as may be appropriate.” Id.

And that’s not all. The toxic materials provision also

lists “other considerations” that the Secretary must

consider, including “the latest available scientific data

in the field, the feasibility of the standards, and

experience gained under this and other health and

safety laws.” Id. By contrast, the permanent standards

provision contains no criteria or considerations that

50a

guide how the Secretary creates a standard for

workplaces across the Nation. See infra Part II.B.

The next relevant provision is OSHA’s definition of

a standard. 29 U.S.C. § 652(8). OSHA broadly defines

“occupational safety and health standard” as a

standard which requires conditions, or the adoption or

use of one or more practices, means, methods,

operations, or processes” that the Secretary thinks

“reasonably necessary or appropriate to provide safe

or healthful employment and places of employment.”

Id. (emphasis added); see infra Part II.B. By pairing

the two provisions together, the meaning is clear:

OSHA authorizes the Secretary to make standards

that he believes are “appropriate.” But that’s it.

There’s no more to it. No fact-finding is required. As a

result, I find no intelligible principle under Panama

Refining and Schechter Poultry’s fact-finding or

specific-situation consideration.

One could argue that because the Secretary must

provide standards that ensure “safe or healthful

employment and places of employment,” 29 U.S.C.

§ 652(8), he must first find “unsafe” or “unhealthful”

employment and places of employment. Again, the

text does not indicate that such a finding must take

place. But even if we were to broadly read that

requirement into the text, Supreme Court precedent

informs us that a statute’s “general outline of policy”

is not enough. Panama Refin., 293 U.S. at 417. We

cannot just take the inverse of every general phrase in

a statute to fabricate a rule that it never had. Cf.

Schechter Poultry, 295 U.S. at 541. And even if we did,

here it would still leave the Secretary’s power

“virtually unfettered.” Id. at 542. Unlike Benzene, we

are not just talking about toxic materials. Rather,

51a

permanent standards can address anything that the

Secretary deems not conducive to “safe or healthful

employment and places of employment.” 29 U.S.C.

§ 652(8). Indeed, the scope of power here (general

safety and health in every workplace) is broader than

just toxic materials in some workplaces (like in

Benzene). So the constraint, if any, does not make a

meaningful difference on the Secretary’s power to find

any standard appropriate.

B.

Second, given the large scope of power that

Congress conferred, the permanent standards

provision does not contain standards that sufficiently

guide the Secretary’s discretion. See Schechter Poultry,

295 U.S. at 541–42; Panama Refining, 293 U.S. at

417–18, 430; Whitman, 531 U.S. at 475. OSHA’s

permanent standards provision specifies nothing that

the Secretary “must conform to”—no “criterion” to

guide what standards he should make. Sunshine

Anthracite Coal Co., 310 U.S. at 397–98. It does not

require that the Secretary consider any “factors” or

that he ignore “prohibited” factors while formulating a

standard. Mistretta, 488 U.S. at 375; see also Touby,

500 U.S. at 167 (“It is clear that . . . Congress has

placed multiple specific restrictions on the Attorney

General’s discretion[.]”). Unlike other provisions, even

within OSHA, see 29 U.S.C. § 655(b)(5), the

permanent standards provision does not require

consideration of “the latest scientific knowledge” or the

like. Whitman, 531 U.S. at 473. Nor does it provide

“directions” or “consideration” of something like a

“base” level of safety. Yakus, 321 U.S. at 419, 427.

52a

The main provision that the Secretary and other

defendants claim provides some sort of limit on the

Secretary’s discretion is OSHA’s definition of an

“occupational safety and health standard.” 29 U.S.C.

§ 652(8). Read in tandem with the permanent

standards provision, the Secretary “may” set

mandatory standards, see id. § 655(b), that employers

and employees must “comply with,” id. § 654,

including “conditions, or the adoption or use of one or

more practices, means, methods, operations, or

processes,” id. § 652(8). 8 As the Secretary and other

defendants argue, those “conditions” or “the adoption”

of means or the like must also be “reasonably necessary

or appropriate to provide safe or healthful employment

and places of employment.” Id. (emphasis added). And

8 The majority opinion reasons that “OSHA cannot merely issue

any standard it likes; rather, a safety risk must be one that

‘requires’ some action for a safe workplace.” (Maj. Op. at 9 (citing

29 U.S.C. § 652(8)). I read the statute differently. Again, the

Secretary “may,” not must, issue a standard. 29 U.S.C. § 655(b).

And that standard will “require[] conditions, or the adoption or

use of one or more practices, means, methods, operations, or

processes.” 29 U.S.C. § 652(8) (emphasis added). Importantly,

that “require[ment]” language pertains to employees or

employers, not the Secretary. Id. So this is unlike cases that have

required the Executive to meet a certain set of criteria. See

Whitman, 531 U.S. at 473 (requiring an agency—not those it

regulates—to consider “the latest scientific knowledge” before

promulgating standards “requisite to protect public health”).

Here, the Secretary is not bound by this “requires” language. 29

U.S.C. § 652(8). Put simply: The Secretary may create any

“conditions, . . . practices, means, methods, operations, or

processes” in workplaces, and employees and employers must

abide by those requirements. Id. So rather than limiting the

Secretary’s discretion to issue a standard, it strengthens his

delegated authority by “requir[ing]” others to comply with the

standards he may create. Id.; see id. § 654.

53a

it’s this phrase, “reasonably necessary or appropriate,”

id., that supposedly limits the Secretary’s power to set

permanent standards. 9

Before getting to the phrase, it’s worth pointing out

that no Supreme Court case has found that the

phrasing of a law—i.e., the usage of the phrase

“reasonably necessary or appropriate” in § 652(8)—

alone creates an intelligible principle. True, the

Supreme Court has “over and over upheld” what

appear to be “even very broad delegations.” Gundy,

139 S. Ct. at 2129 (plurality). For example, it has

approved delegations to various agencies to regulate

in the “public interest,” Nat’l Broad. Co., 319 U.S. at

216, has allowed agencies to set “fair and equitable”

prices and “just and reasonable” rates, Yakus, 321 U.S.

at 420, 427 (citation omitted), and has affirmed a

delegation to an agency to issue whatever air quality

standards are “requisite to protect the public health,”

Whitman, 531 U.S. at 472 (citation omitted). But in

each case, other factors—whether it be fact-finding,

situations, criteria, or considerations—provided an

agency sufficient guidance on the “boundaries of [its]

authority.” Gundy, 139 S. Ct. at 2129 (plurality) (citing

9 The Secretary and other defendants argue that, under Cotton

Dust, the statutory phrase “reasonably necessary or appropriate”

in 29 U.S.C. § 652(8) limits the Secretary to promulgating only

permanent

standards

that

are

“economically”

and

“technologically feasible.” 452 U.S. at 513 n.31. But that stretches

Cotton Dust too far. Cotton Dust clarified that the Court only

addressed how § 652(8)’s language works together with the toxic

standards provision—the provision that explicitly requires

standards to ensure that no employee will suffer a “material

impairment of health” “to the extent feasible.” 29 U.S.C.

§ 655(b)(5); see Cotton Dust, 452 U.S. at 513 n.32; supra Part II.A.

54a

Am. Power & Light Co., 329 U.S. at 105); see supra

Part I.B–C. Those factors are what constituted

intelligible principles—not one, isolated phrase that

doesn’t create a fact-finding requirement. See supra

Part II.A; Cotton Dust, 452 U.S. at 513 n.31.

Even so, if phrasing matters, it doesn’t change the

game here. The word “or” in the phrase, “reasonably

necessary or appropriate,” creates two alternatives for

the Secretary to choose from. 29 U.S.C. § 652(8)

(emphasis added); see Scalia & Garner, Reading Law:

The Interpretation of Legal Texts 116 (discussing the

disjunctive canon of interpretation). That disjunctive

phrase allows the Secretary to set mandatory

standards that are “reasonably necessary.” 10 29 U.S.C.

§ 652(8). Or he can set standards if he believes them

to be “appropriate”—they need not also be “reasonably

necessary.” Id.

Seeing that OSHA provides no other definition,

criterion, or consideration for what it means to be

“appropriate,” I turn to its definition at the time of

OSHA’s enactment. See Keen v. Helson, 930 F.3d 799,

802 (6th Cir. 2019) (“When interpreting the words of a

statute, contemporaneous dictionaries are the best

place to start.”). The term “appropriate” means

“[s]uitable for a particular person, condition, occasion

or place; proper; fitting.” Appropriate, The American

Heritage Dictionary of the English Language 64

10 The phrase, “reasonably necessary,” might be narrower than

the other phrase, “appropriate.” 29 U.S.C. § 652(8). But it is still

broad. The phrase offers no indication of how the Secretary can

determine what is “reasonably necessary.” Because the

Secretary’s choice to set standards that are merely “appropriate”

could be broader though, my analysis focuses on that option.

55a

(1969). 11 And because OSHA “authoriz[es] the

Secretary” (and him alone) “to set mandatory

[permanent] standards,” 29 U.S.C. § 651(b)(3), as well

as the discretion to “by rule promulgate” them, he

alone “may,” id. § 655(b), determine what standard is

“appropriate,” id. § 652(8).

With that in mind, the term “appropriate” and its

implications are far-reaching. See Cass R. Sunstein, Is

OSHA Unconstitutional?, 94 Va. L. Rev. 1407, 1431

(2008) (“[T]he ‘reasonably necessary or appropriate’

clause is plausibly different” from other clauses in

other cases “because that phrase seems to allow (but

not to require) the agency to use some form of costbenefit analysis as a rule of decision.”). Indeed

“appropriate” is “the classic broad and allencompassing term that naturally and traditionally

includes consideration of all the relevant factors.”

Michigan v. EPA, 576 U.S. 743, 752 (2015) (citation

omitted). Notably, “this term leaves agencies with

flexibility,” id., because the language is “open-ended,”

Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (citation

omitted). And its limit, if any, depends on the

statutory context that Congress places the term in. Id.;

see Michigan, 576 U.S. at 752.

The problem here is that OSHA’s context does not

inform what “appropriate” refers to. The term,

working in tandem with the permanent standards

provision, doesn’t seem to require anything but the

11 Other

dictionaries from around 1970 have almost identical

definitions. See, e.g., Appropriate, The American College

Dictionary 62 (1970) (“suitable or fitting for a particular purpose,

person, occasion, etc.”); Appropriate, The Random House

Dictionary of the English Language 74 (1967) (same).

56a

Secretary asking: “What seems appropriate in

workplaces around the nation?” Knowing this, the

term “appropriate” could encompass almost anything

in a workplace setting because the term means

whatever the Secretary himself finds suitable.

Against that premise, however, the Secretary and

other defendants direct us to general purpose

statements in OSHA that the Secretary may—though,

is not required to—consider before implementing a

standard. “As [OSHA’s] name suggests,” Congress

tasked the Secretary “with ensuring occupational

safety,” Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., 142

S. Ct. 661, 663 (2022), or in other words, ensuring “safe

and healthful working conditions” “so far as possible,”

29 U.S.C. § 651(b). So to address “personal injuries and

illnesses arising out of work situations,” id. § 651(a),

Congress sought “to regulate commerce among the

several States and with foreign nations and to provide

for the general welfare, to assure so far as possible

every working man and woman in the Nation safe and

healthful working conditions and to preserve our

human resources,” id. § 651(b).

These purpose statements “in no way limit the

authority which [OSHA] undertakes to vest in the

[Secretary] with no other conditions than those there

specified.” Schechter Poultry, 295 U.S. at 539. Nothing

limits the “breadth of the [Secretary’s] discretion” or

narrows the “wide field of legislative possibilities.” Id.

at 538. “Congress cannot delegate legislative power to

the [Secretary] to exercise an unfettered discretion to

make whatever laws he thinks may be” appropriate for

safe and healthful working conditions across the

country. Id. at 537–38. Even though the general

purposes of OSHA give the Secretary a few possible

57a

considerations, nothing requires him to consider them

in determining what’s appropriate given any situation.

See Panama Refining, 293 U.S. at 431–32.

Congress, when enacting OSHA’s permanent

standards provision, did not specify what safe and

healthful working conditions governed almost every

business in the United States. Instead, OSHA vests

the Secretary of Labor with that power—the discretion

of whether to create a standard and of what standard

to create. OSHA “authoriz[es] the Secretary . . . to set

mandatory occupational safety and health standards

applicable to businesses affecting interstate

commerce.” 29 U.S.C. § 651(b)(3). It does not mandate

that the Secretary enforce a specific standard or even

that he create one—just that he “may” create one. 12 Id.

12 And OSHA doesn’t require the Secretary to promulgate and

modify permanent standards to serve the act’s objectives. The

only provision that requires that some standard be made, 29

U.S.C. § 655(a), is not the permanent standards provision,

§ 655(b). Looking at those two provisions, the Secretary was

required to promulgate a permanent “occupational health and

safety standard” under OSHA within its first two years of

enactment. 29 U.S.C. § 655(a) (“[T]he Secretary shall, as soon as

practicable during the period beginning with the effective date of

this chapter and ending two years after such date, by rule

promulgate . . . an occupational safety or health standard[.]”).

Once that requirement was met—and it was—the Secretary was

no longer obligated to promulgate any other permanent

occupational health and safety standard.

So it’s optional at this point. And what makes that clear is

reading the permanent standards provision—the only provision

at issue here. Id. § 655(b). It explains that “[t]he Secretary may”—

not shall—“by rule promulgate, modify, or revoke any

occupational safety or health standard.” Id. (emphasis added).

And if the Secretary chooses to do so in his discretion, he is then

subject to some procedural requirements that do not limit the

58a

§ 655(b). Said differently, OSHA does not direct the

Secretary to act “simply in execution of the act of

[C]ongress.” 13 Marshall Field & Co., 143 U.S. at 693.

“To hold that [the Secretary] is free to select as he

chooses from the many and various objects generally

described in [OSHA’s purpose statements], and then

to act without making any finding with respect to any

object that he does select, and the circumstances

properly related to that object, would be in effect to

make the conditions inoperative and to invest him

scope of what those standards may require. See infra pp. 27–28.

And yes, if the Secretary wants to regulate, then he must take

certain steps (i.e., he “shall” publish a rule in the Federal Register

and “shall” afford interested persons time to respond). Id.

§ 655(b)(2). But again, those procedural requirements, id.

§ 655(b)(1)–(4) (including that the Secretary “shall” conform to a

few procedural requirements), are all conditioned on him making

the decision to promulgate in the first place, id. § 655(b) (“The

Secretary may by rule promulgate . . . [a] standard in the

following manner[.]” (emphasis added)). I would instead read

§ 655(b)’s clear prefacing condition to “relate[] to all [its]

following . . . subparts.” Scalia & Garner, Reading Law: The

Interpretation of Legal Texts 156 (discussing the scope-ofsubparts canon); see Davis v. Mich. Dep’t of Treasury, 489 U.S.

803, 809 (1989) (“[S]tatutory language cannot be construed in a

vacuum. It is a fundamental canon of statutory construction that

the words of a statute must be read in their context and with a

view to their place in the overall statutory scheme.”).

13 The

majority states that “Congress has indeed laid out the

general policy (a safe working environment).” (Maj. Op. at 15.) To

be clear, that kind of general policy does not itself establish the

required intelligible principle. See Schechter Poultry, 295 U.S. at

541–42. As explained, general “statement[s] of the authorized

objectives,” id. at 534, or “broad declaration[s]”—like OSHA’s

general purpose statements—that leave Executive discretion

“virtually unfettered” do not provide a policy that fixes a

nondelegation problem, id. at 542.

59a

with an uncontrolled legislative power.” Panama

Refin., 293 U.S. at 431–32.

Other than a “general outline of policy,” id. at 417,

Appellants point to three other sections in OSHA that

supposedly affect the Secretary’s enforcement of

permanent standards. By no means do the sections

limit the Secretary’s discretion in creating a standard.

Thus, they cannot function as an intelligible principle.

First, OSHA’s procedural requirements. See 29

U.S.C. § 655(b)(1)–(3). Like other rule makings, see 5

U.S.C. § 553(b), (c), the Secretary must first publish

the proposed standard in the Federal Register and

allow interested persons thirty days to submit

comments or request a hearing. 29 U.S.C. § 655(b)(2).

After that, the Secretary has the choice of consulting

an advisory committee that may submit optional

recommendations. Id. § 655(b)(1). At that point, it’s up

to the Secretary to decide whether to issue a rule, so

long as he does so within a designated time frame. Id.

§ 655(b)(2). And if the rule “differs substantially” from

an existing national standard, he must state the

“reasons” for why the adopted rule would “better

effectuate the purposes of” OSHA. 14 Id. § 655(b)(8).

The Secretary and other defendants argue that this

requirement—to explain why the new standard will “better

effectuate” the purposes of OSHA—serves as a limitation. 29

U.S.C. § 655(b)(8). But, as they acknowledge, the requirement

only kicks in when the Secretary “regulates in an area that is

addressed by national consensus standards.” (Secretary’s Br. at

18.) The provision doesn’t apply to situations in which no national

consensus standard governs already. See 29 U.S.C. § 655(b)(8)

(only applying when the Secretary promulgates a rule that

“substantially differs from an existing national consensus

standard”). And more importantly, merely explaining why the

Secretary is implementing a new standard does not limit the

14

60a

These common procedural requirements, however,

relate only to how the Secretary must promulgate, “not

to the permissible scope of such [standards].”

Schechter Poultry, 295 U.S. at 538. So they do not

require the Secretary to enforce a specific policy, nor

do they limit what standard he can create.

Second, OSHA’s penalties provisions get tacked on

as a punishment to any standard the Secretary

promulgates. Depending on how employers violate a

standard, they may face a citation, civil penalties, or

even imprisonment. 29 U.S.C. §§ 658, 666. True

enough, the Secretary cannot alter these penalties.

“But [they] leave virtually untouched the field of policy

envisaged by” OSHA’s permanent standards.

Schechter Poultry, 295 U.S. at 538. Nothing in OSHA’s

penalties provisions constrains “that wide field of

legislative possibilities.” Id. Indeed, the Secretary

“may roam at will,” promulgating a standard “as he

may see fit.” Id.; see also id. at 523 (finding a

delegation violation, even when the statute specified

that violations of current or future codes could result

in a misdemeanor and a daily accruing fine). As with

OSHA’s procedural requirements, its penalties don’t

guide the Secretary on how to create a workplace

standard.

“permissible scope” of any congressional standard. Schechter

Poultry, 295 U.S. at 538. If it did, every regulation that required

some sort of explanation could fix a latent nondelegation problem.

But as we know, that’s not the case. See Whitman, 531 U.S. at

473 (rejecting the idea that an agency “can cure an

unconstitutionally standardless delegation of power”). For the

same reason, OSHA’s requirement that the Secretary include a

“statement of the reasons” when adopting “any standard” does

not limit his discretion. 29 U.S.C. § 655(e).

61a

Third, OSHA specifies that “[i]n the event of conflict

among any such standards, the Secretary shall

promulgate the standard which assures the greatest

protection of the safety or health of the affected

employees.” 29 U.S.C. § 655(a). The Secretary and

other defendants claim that this provision serves as a

limit. But for the same reasons explained, this

requirement to promulgate the provision with a

greater effect on safety does not limit the “permissible

scope” of what the Secretary can regulate. Schechter

Poultry, 295 U.S. at 538. For any “conflict” to arise, 29

U.S.C. § 655(a), the Secretary would need to

promulgate at least two standards—standards (1) that

Congress did not make itself and (2) that the Secretary

has wide discretion in crafting. And if a conflict

between any old and new standard were to arise, it

seems that the Secretary must choose the broader of

the two. 29 U.S.C. § 655(a). So the provision doesn’t

limit discretion—it seems to only expand discretion by

requiring the Secretary to do more than he did the last

time around. And in any case, allowing the Secretary

to limit himself based on a previous standard that he

also created would seem to allow him to “cure an

unconstitutionally standardless delegation of power”

rather than leaving that to Congress—which we

cannot allow. Whitman, 531 U.S. at 473.

So looking at all of these provisions, I would find

OSHA’s

permanent

standards

provision

unconstitutional because the “absence of standards”

here makes it “impossible . . . to ascertain whether the

will of Congress has been obeyed.” Yakus, 321 U.S. at

426. How can we test what is appropriate given the

broad field of delegated power? The simple answer: We

can’t. That’s because Congress has not “made clear”

62a

whether any “boundaries of . . . authority” exist.

Gundy, 139 S. Ct. at 2129 (plurality) (quoting Am.

Power & Light Co., 329 U.S. at 105). Because Congress

failed to provide the Secretary “with standards

guiding its actions such that a court could ‘ascertain

whether the will of Congress has been obeyed,’” I

would hold that a “delegation of legislative authority

trenching on the principle of separation of powers has

occurred.” Skinner v. Mid- Am. Pipeline Co., 490 U.S.

212, 218 (1989) (quoting Mistretta, 488 U.S. at 379)

(reaffirming this “longstanding principle”); see Yakus,

321 U.S. at 426.

Even if one were to derive some broad standard, it

would not sufficiently guide the Secretary’s discretion.

Again, the amount of guidance Congress must provide

to carry out its legislation varies by how much power

it delegates to a federal agency. Whitman, 531 U.S. at

475 (“[T]he degree of agency discretion that is

acceptable varies according to the scope of the power

congressionally conferred.”); Wayman, 23 U.S. (10

Wheat.) at 43 (“To determine the character of the

power given to [an entity] by the [legislation], we must

inquire into its extent.”); Tiger Lily, LLC, 5 F.4th at

672 (recognizing the same and that “unfettered power

would likely require greater guidance”); see also Synar

v. United States, 626 F. Supp. 1374, 1386 (D.D.C. 1986)

(“When the scope increases to immense proportions (as

in Schechter) the standards must be correspondingly

more precise.”), aff’d sub nom. Bowsher v. Synar, 478

U.S. 714 (1986). Sure, “Congress need not provide any

direction” when the field of power is narrow in itself—

such as a delegation to define “country elevators”

which would be “exempt from” the new regulations.

Whitman, 531 U.S. at 475 (citing 42 U.S.C. § 7411(i)).

63a

But when the grant of power is bigger, such that it can

“affect the entire national economy,” Congress “must

provide substantial guidance.” Id.

Surely OSHA—a statute affecting practically every

business in the United States—falls into the latter of

the two. See Sunstein, supra, at 1429 (“[B]ecause

OSHA covers essentially all American workers, the

existence of untrammeled discretion would be a

serious problem.”). This isn’t a statute that only

pertains to one industry. See N.Y. Cent. Secs. Corp.,

287 U.S. at 24–25 (railroad); Nat’l Broad. Co., 319 U.S.

at 214 (radio); Sunshine Anthracite, 310 U.S. at 387

(coal). And the power vested is not just “temporary.”

Yakus, 321 U.S. at 419 (“temporary wartime

measure”). Nor does the power seem to be a traditional

executive function. 15 See id. at 424. Instead, OSHA

15 Another trend—one that does not relate to the delegation in

this case—focuses on “whether the particular function” vested by

a legislative act “requires the exercise of a certain type of power.”

Dep’t of Transp., 575 U.S. at 69 (Thomas, J., concurring in the

judgment); see id. at 70 (“The function at issue here is the

formulation of generally applicable rules of private conduct.

Under the original understanding of the Constitution, that

function requires the exercise of legislative power.”). Indeed,

“Congress may assign the executive and judicial branches certain

non-legislative responsibilities.” Gundy, 139 S. Ct. at 2137 (2019)

(Gorsuch, J., dissenting). Many cases, for instance, granted

powers that would seem to fall in the Executive’s job description,

such as matters dealing with war and foreign exchange. See

generally Yakus, 321 U.S. at 420, 426–27 (vesting the inherently

executive warpower to an official to control pricing of

commodities if doing so was “fair and equitable” after considering

a list of factors); Marshall Field & Co., 143 U.S. at 692–93, 697

(enforcing foreign trade suspension under the policy established

by Congress); J.W. Hampton, Jr., & Co., 276 U.S. at 411

(enforcing a price-fixing policy over foreign and domestic products

64a

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. 16 In other words, OSHA allows the

because the President was a “mere agent of the lawmaking

department”); see generally Gundy, 139 S. Ct. at 2144 (Gorsuch,

J., dissenting) (“Congress may assign the President broad

authority regarding the conduct of foreign affairs or other

matters where he enjoys his own inherent Article II powers.”);

Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (“The complex[,] subtle,

and professional decisions as to the composition, training,

equipping, and control of a military force are essentially

professional military judgments, subject always to civilian

control of the Legislative and Executive Branches.”).

What should make us especially skeptical of the lack of

guidance here is that the Secretary gets “authority to regulate an

area—public health and safety—traditionally regulated by the

States.” In re MCP No. 165, Occupational Safety & Health Admin.,

Interim Final Rule: COVID-19 Vaccination & Testing, 20 F.4th

264, 267 (6th Cir. 2021) (Sutton, C.J., dissenting from the denial

of initial hearing en banc); see id. at 287 (Bush, J., dissenting from

the denial of initial hearing en banc) (“Part and parcel of that

traditional police power—and thus an authority ‘reserved to the

States’—is the power to regulate public health.” (citing U.S.

Const. amend. X; Jacobson v. Massachusetts, 197 U.S. 11, 25

(1905))). “There is no question that state and local authorities

possess considerable power to regulate public health.” Nat’l Fed’n

of Indep. Bus., 142 S. Ct. at 667 (Gorsuch, J., concurring).

“[S]everal extant legal bodies possess significant authority to

clamp down on unreasonable dangers: Congress, state

legislatures, state regulators, courts applying state tort law.”

SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1222 (D.C. Cir.

2014) (Kavanaugh, J., dissenting). That’s because the states

enjoy the “general power of governing,” including all sovereign

powers envisioned by the Constitution and not specifically vested

in the federal government. Nat’l Fed. of Indep. Bus. v. Sebelius,

567 U.S. 519, 536 (2012); see U.S. Const. amend. X.

16

65a

Secretary to regulate private conduct in workplaces by

any means “appropriate.” 17 29 U.S.C. § 652(8). And

17 Though I believe that the Plaintiffs here ought to prevail under

existing doctrine, were the Court to revisit how nondelegation

under Article I operates, it ought to consider what Congress

historically delegated to federal officials around the Framing.

Some scholars have recognized that early delegations to the

Executive are different from the delegations we typically see

today. That’s because, before, the statutes authorized the

executive to create rules that were only “binding” on executive

officials, not members of the public. Philip Hamburger, Is

Administrative Law Unlawful? 89 (2014); see id. at 84 (explaining

that early delegation “statutes . . . assumed that executive officers

could issue directions merely to lesser officers, not to the rest of

the public”); see id. at 95 (“What was controversial was the extent

to which executive interpretations and instructions could direct

inferior officers and what this meant, not whether such directives

bound the public.”); Wurman, supra, at 1556 (“Private rights and

conduct are undoubtedly more important than official conduct or

public privileges, but that does not mean Congress could delegate

unlimited discretion over the latter, and no discretion over the

former.”); see also Paul J. Larkin, Revitalizing the Nondelegation

Doctrine, 23 Federalist Soc’y Rev. 238, 247–48 (2022) (discussing

Professor Jonathan Adler and Professor John Harrison’s views on

how the nondelegation doctrine works with statutes delegating

rulemaking authority over private conduct).

Some Justices have already noted this issue. See, e.g., Dep’t of

Transp., 575 U.S. at 86 (Thomas, J., concurring in the judgment)

(“We should return to the original meaning of the Constitution:

The Government may create generally applicable rules of private

conduct only through the proper exercise of legislative power.”);

West Virginia v. EPA, 142 S. Ct. 2587, 2618 (2022) (Gorsuch, J.,

concurring) (“The framers believed that the power to make new

laws regulating private conduct was a grave one that could, if not

properly checked, pose a serious threat to individual liberty.”); see

also Gundy, 139 S. Ct. at 2144 (Gorsuch, J., dissenting) (“If the

separation of powers means anything, it must mean that

Congress cannot give the executive branch a blank check to write

a code of conduct governing private conduct for a half-million

66a

there is no telling what the Secretary might deem

“appropriate” to do—especially in a post-COVID world

where the “place[] of employment” might include your

house. 18 Id.

Given that OSHA’s permanent standards provision

vests large power in the Secretary, the details limiting

his discretion must be correspondingly detailed. Yet

they’re not. OSHA’s very few requirements do not

constrain the Secretary’s broad power.

True, the standards that the Supreme Court has

approved in the face of nondelegation challenges “are

not demanding.” Big Time Vapes, Inc. v. FDA., 963

F.3d 436, 442 (5th Cir. 2020) (Smith, J.) (quoting

Gundy, 139 S. Ct. at 2129 (plurality)). Even so, OSHA

fails to match even these minimal standards. Thus, I

find no intelligible principle based on Panama

people.”); United States v. Nichols, 784 F.3d 666, 671 (10th Cir.

2015) (Gorsuch, J., dissenting from the denial of rehearing en

banc) (“Congress can’t punt to the President the job of devising a

competition code for the chicken industry . . . . Such widely

applicable rules governing private conduct must be enacted by

the Legislature.”).

18 The Secretary and other defendants argue that OSHA’s scope

is limited because it “empowers the Secretary to set workplace

safety standards, not broad public health measures.” Nat’l Fed’n

of Indep. Bus., 142 S. Ct. at 665 (involving a COVID-19 vaccine

mandate). That may be true. But nothing changes OSHA’s

explicit vesting of broad authority that the Secretary has the

power to create “safe and healthful working conditions” for “every

working man and woman in the Nation.” 29 U.S.C. § 651(b). All

he must do is find a standard “appropriate” for some rhyme or

reason. Id. § 652(8); see Nat’l Fed’n of Indep. Bus., 142 S. Ct. at

665–66 (“Where [COVID-19] poses a special danger because of

the particular features of an employee’s job or workplace,

targeted regulations are plainly permissible.”).

67a

Refining

and

Schechter

Poultry’s

second

consideration—that is, there is no sufficient standard

here.

*

*

*

OSHA’s permanent standards provision does not

have an intelligible principle. 19 That’s because it (1)

requires no fact-finding or situation to arise before

agency actions takes place and (2) provides no

standard that sufficiently guides the exercise of the

broad authority vested in the Secretary. As a result,

OSHA violates Article I as an unconstitutional

delegation of legislative power. So I respectfully

dissent.

I recognize that successful nondelegation cases are

few and far between. But I emphasize that—even

under the minimal requirements needed to find an

“intelligible principle”—OSHA’s permanent standards

provision does not pass muster.

19 The

Secretary and other defendants appeal to the canon of

constitutional avoidance, arguing that this Court should avoid

holding that the permanent standards provision is

unconstitutional because a constitutional interpretation of the

text exists. (Secretary’s Br. at 18.) But that canon “comes into

play only when, after the application of ordinary textual analysis,

the statute is found to be susceptible of more than one

construction.” Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)

(citation omitted); see Scalia & Garner, Reading Law: The

Interpretation of Legal Texts 247 (discussing the constitutionaldoubt canon). As explained, this is not a time when we have “more

than one plausible construction.” Jennings, 138 S. Ct. at 842. So

“the canon simply has no application” here. Id. (cleaned up).

68a

III.

For these reasons, I respectfully dissent and would

reverse the district court’s judgment.

69a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Allstates Refractory Contractors,

LLC,

Plaintiff,

-vsMartin J. Walsh, et al.,

Defendants.

Case No. 3:21 CV

1864

MEMORANDUM

OPINION

JUDGE JACK

ZOUHARY

INTRODUCTION

Plaintiff Allstates Refractory Contractors, LLC

(“Allstates”) filed this suit against the Secretary of

Labor and the Occupational Safety and Health

Administration (collectively “OSHA”). Allstates asks

this Court to declare OSHA’s statutory power to

promulgate

permanent

“safety

standards”

unconstitutional, and to issue a permanent injunction

preventing OSHA from enforcing those standards.

The parties filed dueling Motions for Summary

Judgment, which is appropriate only where “there is

no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”

Federal Civil Rule 56(a). This Court heard oral

argument and the matter is fully briefed (Docs. 23–26).

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BACKGROUND

OSHA Permanent Safety Standards

Congress passed the Occupational Safety and

Health Act (“Act”) in 1970, declaring the Act’s

“purpose and policy” was “to assure so far as possible

every working man and woman in the Nation safe and

healthful working conditions.” 29 U.S.C. § 651(b).

Under the Act, Congress gave the Secretary of Labor

the power “to set mandatory occupational safety and

health standards,” 29 U.S.C. § 651(b)(3), and vested

the Secretary with “broad authority . . . to promulgate

different kinds of standards” for health and safety in

the workplace.” Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst., 448 U.S. 607, 611 (1980) (“Benzene”)).

The Act tasks OSHA with ensuring “safe and

healthful working conditions” in American workplaces.

29 U.S.C. § 651(b). OSHA accomplishes this goal by

issuing and enforcing health and safety standards. 29

U.S.C. § 655(b). There are three types of standards:

interim, permanent, and emergency. Relevant here

are the permanent standards issued under Section

6(b).

Allstates

Allstates is a general contractor that provides

furnace services to various glass, metal, and

petrochemical facilities (Doc. 23-1 at 13). The company

has four full-time employees, but also hires “up to 100”

part-time employees, depending on the job (id. at 14).

“Allstates prides itself on its commitment to worker

safety” and spends “thousands” on training employees

and complying with OSHA safety standards (id.).

Allstates has also experienced OSHA penalties

firsthand. In 2019, OSHA cited the company for

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standards violations, including a “serious violation

after a catwalk brace fell and injured a worker below”

(Doc. 24-1 at 14). Allstates did not contest the citation

or seek judicial review (id. at 15). Instead, it settled

the violation for $5,967 in December 2019 (id.).

Allstates argues that OSHA’s authority to issue

safety

standards

under

Section

6(b)

is

unconstitutionally broad. It further alleges OSHA

imposes penalties in a way that is “arbitrary and

abusive” (Doc. 23-1 at 9), and that “a number of OSHA

standards are unnecessarily burdensome or

dangerous” (id. at 14).

JURISDICTION

Before turning to the merits of the constitutional

challenge, this Court must first address the threshold

issue of jurisdiction. The answer to that question lies

in the Act’s administrative-review framework.

There are essentially two types of challenges to

OSHA safety standards -- enforcement and preenforcement. Section 658(a) controls enforcement

challenges, i.e., situations where OSHA has issued a

citation against a company. An employer has fifteen

days to notify OSHA that it plans to contest the

standard. If the employer timely challenges the

standard, it is entitled to an administrative hearing

and administrative appeal. Section 655(f) outlines the

specific process for “pre-enforcement” challenges, i.e.,

situations in which OSHA has issued a standard, but

not yet enforced that standard against the employer.

Any “petition challenging the validity” of an OSHA

safety standard must be filed: (1) “prior to the sixtieth

day after such standard is promulgated,” and (2) “with

the United States court of appeals for the circuit

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wherein [the petitioner] resides or has [their] principal

place of business.” 29 U.S.C. § 655(f). This 60-day limit

is strictly enforced. See Am. Fed’n of Labor & Cong. of

Indus. Orgs. v. OSHA, 905 F.2d 1568, 1570 (D.C. Cir.

1990) (noting that “statutory time limits on petitions

for judicial review of agency action have been held

‘jurisdictional and unalterable’”) (citations omitted).

Defendants argue the administrative-review

framework applies in this case -- meaning Allstates is

too late and in the wrong court. But can Allstates

sidestep the procedural bars outlined above?

According to Allstates, it “is challenging the facial

constitutionality of OSHA’s enabling statute, not its

standards,

rendering

the

[G]overnment’s

jurisdictional objection beside the point” (Doc. 25 at 5).

Generally, procedures “designed to permit agency

expertise to be brought to bear on particular

problems . . . are to be exclusive.” Whitney Nat’l Bank

in Jefferson Par. v. Bank of New Orleans & Tr. Co.,

379 U.S. 411, 420 (1965). Judicial review is barred

where the “statutory scheme” displays a “fairly

discernible” intent to limit jurisdiction, and the claims

at issue “are of the type Congress intended to be

reviewed within th[e] statutory structure.” Thunder

Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212 (1994)

(citation and internal quotation marks omitted).

However, judicial review is not always foreclosed by a

statutory framework. As noted by the Supreme Court,

“we presume that Congress does not intend to limit

jurisdiction if ‘a finding of preclusion could foreclose

all meaningful judicial review’; if the suit is ‘wholly

collateral to a statute’s review provisions’; and if the

claims are ‘outside the agency’s expertise.’” Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.

73a

477, 489 (2010) (quoting Thunder Basin, 510 U.S. at

212–213). So the question becomes: Does this type of

constitutional challenge fall within the OSHA

administrative-review framework?

Plaintiff points to Free Enterprise Fund, where the

Supreme Court examined a challenge to the Public

Company Accounting Oversight Board, created under

the Sarbanes-Oxley Act of 2002. 561 U.S. 477. The

Board, composed of five members selected by the

Securities and Exchange Commission (“SEC”), had the

authority to investigate all details of an accounting

practice, including hiring, promotion, business

relationships, internal-inspection protocols, and

professional ethics. Id. at 485. The SEC had oversight

of the Board, but could remove members only for good

cause. Id. at 486. Similarly, the President could

remove the SEC Commissioners only for good cause,

meaning they could not be removed absent

“inefficiency, neglect of duty, or malfeasance in office.”

Id. at 487 (quoting Humphrey’s Ex’r v. United States,

295 U.S. 602, 620 (1935)). This resulted in a dual layer

of “good-cause tenure.” Id. The Supreme Court held

that the statutory-review scheme did not bar judicial

review, because: (1) forcing plaintiff to wait to be

sanctioned was not a “meaningful” avenue of relief;

and (2) the constitutional claims were “outside the

Commission’s competence and expertise,” “and the

statutory questions involved do not require technical

considerations of agency policy.” Id. at 490–91

(cleaned up).

The same logic applies here. First, Allstates has no

other meaningful avenue of relief. If this Court does

not have jurisdiction to hear this constitutional claim,

Allstates would be forced to “bet the farm” by waiting

74a

to incur OSHA penalties in order to challenge the

constitutionality of OSHA itself (Doc. 25 at 19). Second,

Congress did not intend for the agency to review such

a claim. Indeed, OSHA has no expertise in

adjudicating

“broad,

systemic

constitutional

challenges to the [Act] and [OSHA’s] administration of

it that are not tied to any individual enforcement

challenges.” Elk Run Coal Co. v. U.S. Dep’t of Labor,

804 F. Supp. 2d 8, 22 (D.D.C. 2011). See also Ohio Coal

Ass’n v. Perez, 192 F. Supp. 3d 882, 898 (S.D. Ohio

2016) (holding that Thunder Basin does not strip the

district court of jurisdiction where the “claims do not

germinate from a ‘violation[] of the Act and its

regulations’” or “challenge . . . an enforcement action

taken by the [OSHA]”).

In short, Allstates challenges the constitutionality

of the underlying statute -- not any particular safety

standard. Because this challenge is “‘collateral’ to any

[OSHA] orders or rules from which review might be

sought,” Free Enterprise Fund, 561 U.S. at 490, this

Court proceeds to address the merits of the claim.

CONSTITUTIONALITY

To demonstrate a permanent injunction is

warranted, a party must show: “(1) that it has suffered

an irreparable injury; (2) that remedies available at

law, such as monetary damages, are inadequate to

compensate for that injury; (3) that, considering the

balance of hardships between the plaintiff and

defendant, a remedy in equity is warranted; and (4)

that the public interest would not be disserved by a

permanent injunction.” eBay Inc. v. MercExchange,

LLC, 547 U.S. 388, 391 (2006). The parties agree that

the irreparable-injury prong is satisfied. And “the

75a

harm to the opposing party and the public interest

factors merge when the Government is the opposing

party.” Wilson v. Williams, 961 F.3d 829, 844 (6th Cir.

2020) (citation and internal quotation marks omitted).

To prevail, Allstates must show “actual success” on the

merits with respect to the constitutionality of OSHA’s

permanent safety standards. Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 32 (2008) (citation omitted).

Permanent Standards

So what is an acceptable permanent safety standard?

The Act defines an “occupational safety or health

standard” as a standard “reasonably necessary or

appropriate to provide safe or healthful employment

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

a standard may be enacted, OSHA “must make ‘a

threshold finding that a place of employment is unsafe

-- in the sense that significant risks are present and

can be eliminated or lessened by a change in practices.’”

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

(D.C. Cir. 2011) (quoting Benzene, 448 U.S. at 642).

The standards “must also be developed using” a

rigorous process that includes notice, comment, and an

opportunity for a public hearing. Nat’l Fed’n of Indep.

Bus. v. Dep’t of Labor, 142 S. Ct. 661, 663 (2022) (citing

29 U.S.C. § 655(b)).

There are two types of permanent safety standards:

(1) health, dealing with “latent hazards, such as

carcinogens”; and (2) safety, addressing “hazards that

cause immediately visible physical harm.” Int’l Union

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

first category involves “toxic materials or harmful

physical agents.” 29 U.S.C. § 655(b)(5). The second

involves “permanent standards other than those

76a

dealing with toxic materials and harmful physical

agents.” Benzene, 448 U.S. at 640 n.45. These

standards regulate things such as hand tools,

equipment, signage, and working surfaces.

Non-Delegation Doctrine

Allstates’ argument in support of an injunction is

straightforward -- Congress violated the Constitution

by delegating to OSHA the authority to write

permanent safety standards. Article I of the

Constitution states that “[a]ll legislative Powers

herein granted shall be vested in a Congress of the

United States.” This principle, known as the

“nondelegation doctrine,” prevents Congress from

“transfer[ing] to another branch powers which are

strictly and exclusively legislative.” Gundy v. United

States, 139 S. Ct. 2116, 2123 (2019) (citation and

internal quotation marks omitted). “But Congress may

confer substantial discretion on executive agencies to

implement and enforce the laws.” Id. In doing so,

“Congress must lay down an intelligible principle to

which the person or body authorized to act is directed

to conform.” Whitman v. Am. Trucking Ass’ns, 531 U.S.

457, 458 (2001) (citing J.W. Hampton, Jr., & Co. v.

United States, 276 U.S. 394, 409 (1928)). “The

standards for that principle are not demanding.”

Gundy, 139 S. Ct. at 2120. “Only twice in this country’s

history has the Court found a delegation excessive, in

each case because ‘Congress had failed to articulate

any policy or standard’ to confine discretion.” Id.

(quoting Mistretta v. United States, 488 U.S. 361, 373,

n.7 (1989)). See A. L. A. Schechter Poultry Corp. v.

United States, 295 U.S. 495 (1935); Panama Refin. Co.

v. Ryan, 293 U.S. 388 (1935).

77a

To determine if there is an intelligible principle here,

we must first examine the section of the Act that

enables OSHA to promulgate safety standards.

Allstates does not challenge OSHA’s authority to

promulgate health standards. That section of the Act

requires OSHA to set standards that “most adequately

assure[], 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.” 29 U.S.C. § 655(b)(5). The Supreme

Court has elaborated that, under this provision, OSHA

must “enact the most protective standard possible to

eliminate a significant risk of material health

impairment, subject to the constraints of economic and

technological feasibility,” with no room for “any

further balancing” of costs and benefits. Am. Textile

Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 495, 513

(1981).

However, there is no similar provision in the statute

for safety standards. Instead, the guidance for these

standards comes from the Act’s definition section,

which states: “The term ‘occupational safety and

health standard’ means a standard which 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). The Court outlined in Benzene that

“safe” in this context requires OSHA to make “a

threshold finding that a place of employment is unsafe

-- in the sense that significant risks are present.” 448

U.S. at 642. The Court has not yet addressed the

78a

meaning of “reasonably necessary or appropriate,” but

appellate courts have weighed in. 29 U.S.C. § 652(8).

In National Maritime Safety Association v. OSHA,

plaintiff claimed that Congress did not provide an

intelligible principal to guide OSHA’s promulgation of

health and safety standards. 649 F.3d 743 (D.C. Cir.

2011). The D.C. Circuit flatly rejected the argument:

The delegation of power to OSHA under the [ ] Act

to set health or safety standards that are

“reasonably necessary or appropriate to provide

safe or healthful employment and places of

employment,” 29 U.S.C. § 652(8), is no broader

than other delegations that direct agencies to act

in the “public interest,” or in a way that is “fair

and equitable,” or in a manner “requisite to

protect the public health,” or when “necessary to

avoid an imminent hazard to the public safety,” . . .

In light of these precedents, one cannot plausibly

argue that 29 U.S.C. § 652(8)’s “reasonably

necessary or appropriate to provide safe or

healthful employment and places of employment”

standard is not an intelligible principle.

649 F.3d at 755–56 (cleaned up). Previously, in

Blocksom & Co. v. Marshall, the Seventh Circuit did

the same:

It is true that no one could necessarily predict

from the statutory scheme exactly what

regulations would be promulgated in any given

industry, but that is not necessary. What is

perfectly clear is that the Congress has chosen a

policy and announced general standards which

guide the Secretary in establishing specific

standards to assure the safest and healthiest

79a

possible working environments, and which enable

the courts and the public to test the Secretary’s

faithful performance of that command. Nothing

more is required.

582 F.2d 1122, 1126 (7th Cir. 1978). Plaintiff fails to

distinguish, or even mention, these cases. And

Plaintiff makes no new argument that would cast

doubt on their reasoning.

Plaintiff concedes the Act requires a threshold

finding of significant risk (Doc. 23-1 at 6). OSHA next

must determine what standards are “reasonably

necessary or appropriate” to mitigate that risk. 29

U.S.C. § 652(8). This is enough guidance to overcome

the non-delegation challenge. Whitman is instructive

on this point. In that case, the Court upheld the EPA’s

authority to set air-quality standards. Whitman, 531

U.S. 457. Allstates claims Whitman is distinguishable,

because there, Congress empowered the EPA to “set

air quality standards ‘requisite to protect the public

health’” (Doc. 25 at 6). But that’s not the whole story.

The EPA was given authority to set standards “at the

level that is ‘requisite’ -- that is, not lower or higher

than is necessary -- to protect the public health with

an adequate margin of safety.” Whitman, 531 U.S. at

475–76 (emphasis added). Thus, Congress delegated to

the EPA the discretion to determine the adequate level

of public safety, and then set standards based on that

determination. So too here.

After OSHA makes the threshold finding of

significant risk, the agency has discretion to

determine what safety standards are “reasonably

necessary or appropriate” to mitigate that risk. 29

U.S.C. § 652(8). As the Court noted, “even in sweeping

80a

regulatory schemes we have never demanded . . . that

statutes provide a ‘determinate criterion’ for saying

‘how much of the regulated harm is too much.’”

Whitman, 531 U.S. at 475. The Court has never

“require[d] the statute to decree how ‘imminent’ was

too imminent, or how ‘necessary’ was necessary

enough, or even . . . how ‘hazardous’ was too

hazardous.” Id. (citation omitted).

Context also matters. The purpose of the Act was,

among other things, “to assure so far as possible every

working man and woman in the Nation safe and

healthful working conditions.” 29 U.S.C. § 651(b). And

to effectuate that purpose, Congress “authoriz[ed] the

Secretary of Labor to set mandatory occupational

safety and health standards.” 29 U.S.C. § 651(b)(3).

And OSHA may only promulgate permanent

standards that “differ[] substantially from an existing

national consensus standard” if the agency explains

why the new standard “will better effectuate the

purposes” of the Act. 29 U.S.C. § 655(b)(8). These

provisions provide guidance to construe the Act’s

definitions. Take for instance New York Central

Securities Corporation v. United States, where the

Court found the Interstate Commerce Commission’s

authority to regulate in the “public interest” was

sufficient when the purpose of the enabling statute

was related to “adequacy of transportation service, to

its essential conditions of economy and efficiency, and

to appropriate provision and best use of transportation

facilities.” 287 U.S. 12, 25 (1932). Or National

Broadcasting Company v. United States, where the

Court

held

the

Federal

Communications

Commission’s authority to regulate in the “public

interest” was sufficient to provide an intelligible

81a

principle because that phrase effectuated the purpose

of “encourag[ing] the large and more effective use of

radio.” 319 U.S. 190 (1943). And again, in Yakus v.

United States, the Court approved the delegation of

power to the Office of Price Administration to fix

wartime commodities prices at a level that “in [the

Administrator’s] judgment will be generally fair and

equitable and will effectuate the purposes of th[e] Act.”

321 U.S. 414, 420 (1944).

“[T]he Court has over and over upheld even very

broad delegations.” Gundy, 139 S. Ct. at 2117. Plaintiff

asks this Court to disregard these precedents -- an

invitation this Court declines.

CONCLUSION

Section 6(b) safety standards cover dozens of

workplace concerns -- everything from walking

surfaces and fall-protection to respiratory gear and

eyewash stations (see Doc. 1 at 10–15). Plaintiff asks

this Court to enjoin OSHA from enforcing this broad

range of standards against all employers nationwide.

This Court is skeptical of district court injunctions

“ordering the [G]overnment to take (or not take) some

action with respect to those who are strangers to the

suit.” Dep’t of Homeland Sec. v. New York, 140 S. Ct.

599, 600 (2020) (Gorsuch, J., concurring). “Injunctions

like these [] raise serious questions about the scope of

courts’ equitable powers under Article III.” Id. See also

Arizona v. Biden, 40 F.4th 375, 396 (6th Cir. 2022)

(Sutton, J., concurring) (noting that “a district court

should think twice -- and perhaps twice again -- before

granting universal anti-enforcement injunctions

against the federal government”).

82a

In any event, this Court agrees that Congress must

impose “specific restrictions that meaningfully

constrain the agency” for a delegation of power to pass

constitutional muster. Nat’l Fed’n of Indep. Bus., 142

S. Ct. at 669 (Gorsuch, J., concurring) (cleaned up).

The Supreme Court has “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.” Mistretta, 488 U.S. at

416 (Scalia, J., dissenting).

With no binding or persuasive authority supporting

its argument, Plaintiff falls short of demonstrating

actual success on the merits. OSHA’s discretion is

sufficiently limited. Plaintiff’s Motion (Doc. 23) is

denied; Defendants’ Motion (Doc. 24) is granted.

IT IS SO ORDERED.

s/ Jack Zouhary

JACK ZOUHARY

U. S. DISTRICT JUDGE

September 2, 2022

83a

APPENDIX C

No. 22-3772

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ALLSTATES REFRACTORY

CONTRACTORS, LLC,

Plaintiff-Appellant,

v.

JULIE A. SU, IN HER OFFICIAL

CAPACITY AS ACTING SECRETARY OF

LABOR, U.S. DEPARTMENT OF LABOR;

DOUGLAS L. PARKER, IN HIS

OFFICIAL CAPACITY AS ASSISTANT

SECRETARY OF LABOR FOR

OCCUPATIONAL SAFETY AND

HEALTH; OCCUPATIONAL SAFETY &

HEALTH ADMINISTRATION, U.S.

DEPARTMENT OF LABOR; UNITED

STATES ATTORNEY FOR THE

NORTHERN DISTRICT OF OHIO,

ORDER

Defendants-Appellees.

BEFORE: COOK, GRIFFIN, and NALBANDIAN,

Circuit Judges.

84a

The court received a petition for rehearing en banc.

The original panel has reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original

submission and decision of the case. The petition then

was circulated to the full court. * No judge has

requested a vote on the suggestion for rehearing en

banc.

Therefore, the petition is denied.

/s/ Kelly L. Stephens

Kelly L. Stephens, Clerk

* Judge Stranch recused herself from participation in this ruling.

85a

APPENDIX D

U.S. Const. art. I, § 1

All legislative Powers herein granted shall be vested

in a Congress of the United States, which shall consist

of a Senate and House of Representatives.

86a

29 U.S.C. § 651

Congressional statement of findings

and declaration of purpose and policy

(a)

The Congress finds that personal injuries and

illnesses arising out of work situations impose a

substantial burden upon, and are a hindrance to,

interstate commerce in terms of lost production, wage

loss, medical expenses, and disability compensation

payments.

(b)

The Congress declares it to be its purpose and

policy, through the exercise of its powers to regulate

commerce among the several States and with foreign

nations and to provide for the general welfare, to

assure so far as possible every working man and

woman in the Nation safe and healthful working

conditions and to preserve our human resources—

(1)

by encouraging employers and employees

in their efforts to reduce the number of

occupational safety and health hazards at their

places of employment, and to stimulate

employers and employees to institute new and

to perfect existing programs for providing safe

and healthful working conditions;

(2)

by providing that employers and

employees have separate but dependent

responsibilities and rights with respect to

achieving safe and healthful working conditions;

(3)

by authorizing the Secretary of Labor to

set mandatory occupational safety and health

standards applicable to businesses affecting

interstate commerce, and by creating an

Occupational Safety and Health Review

87a

Commission for carrying out adjudicatory

functions under this chapter;

(4)

by building upon advances already made

through employer and employee initiative for

providing safe and healthful working conditions;

(5)

by providing for research in the field of

occupational safety and health, including the

psychological factors involved, and by

developing innovative methods, techniques, and

approaches for dealing with occupational safety

and health problems;

(6)

by exploring ways to discover latent

diseases, establishing causal connections

between diseases and work in environmental

conditions, and conducting other research

relating to health problems, in recognition of

the fact that occupational health standards

present problems often different from those

involved in occupational safety;

(7)

by providing medical criteria which will

assure insofar as practicable that no employee

will suffer diminished health, functional

capacity, or life expectancy as a result of his

work experience;

(8)

by providing for training programs to

increase the number and competence of

personnel engaged in the field of occupational

safety and health;

(9)

by providing for the development and

promulgation of occupational safety and health

standards;

88a

(10) by providing an effective enforcement

program which shall include a prohibition

against giving advance notice of any inspection

and sanctions for any individual violating this

prohibition;

(11) by encouraging the States to assume the

fullest responsibility for the administration and

enforcement of their occupational safety and

health laws by providing grants to the States to

assist in identifying their needs and

responsibilities in the area of occupational

safety and health, to develop plans in

accordance with the provisions of this chapter,

to improve the administration and enforcement

of State occupational safety and health laws,

and to conduct experimental and demonstration

projects in connection therewith;

(12) by providing for appropriate reporting

procedures with respect to occupational safety

and health which procedures will help achieve

the objectives of this chapter and accurately

describe the nature of the occupational safety

and health problem;

(13) by encouraging joint labor-management

efforts to reduce injuries and disease arising out

of employment.

89a

29 U.S.C. § 652

Definitions

For the purposes of this chapter—

(1)

The term “Secretary”

Secretary of Labor.

mean

1

the

(2)

The term “Commission” means the

Occupational Safety and Health Review

Commission established under this chapter.

(3)

The term “commerce” means trade,

traffic,

commerce,

transportation,

or

communication among the several States, or

between a State and any place outside thereof,

or within the District of Columbia, or a

possession of the United States (other than the

Trust Territory of the Pacific Islands), or

between points in the same State but through a

point outside thereof.

(4)

The term “person” means one or more

individuals,

partnerships,

associations,

corporations,

business

trusts,

legal

representatives, or any organized group of

persons.

(5)

The term “employer” means a person

engaged in a business affecting commerce who

has employees, but does not include the United

States (not including the United States Postal

Service) or any State or political subdivision of

a State.

1 So in original.

Probably should be “means”.

90a

(6)

The term “employee” means an employee

of an employer who is employed in a business of

his employer which affects commerce.

(7)

The term “State” includes a State of the

United States, the District of Columbia, Puerto

Rico, the Virgin Islands, American Samoa,

Guam, and the Trust Territory of the Pacific

Islands.

(8)

The term “occupational safety and health

standard” means a standard which 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.

(9)

The term “national consensus standard”

means any occupational safety and health

standard or modification thereof which (1), 2 has

been adopted and promulgated by a nationally

recognized standards-producing organization

under procedures whereby it can be determined

by the Secretary that persons interested and

affected by the scope or provisions of the

standard have reached substantial agreement

on its adoption, (2) was formulated in a manner

which afforded an opportunity for diverse views

to be considered and (3) has been designated as

such a standard by the Secretary, after

consultation with other appropriate Federal

agencies.

2 So in original.

The comma probably should not appear.

91a

(10) The term “established Federal standard”

means any operative occupational safety and

health standard established by any agency of

the United States and presently in effect, or

contained in any Act of Congress in force on

December 29, 1970.

(11) The term “Committee” means the

National Advisory Committee on Occupational

Safety and Health established under this

chapter.

(12) The term “Director” means the Director

of the National Institute for Occupational

Safety and Health.

(13) The term “Institute” means the National

Institute for Occupational Safety and Health

established under this chapter.

(14) The term “Workmen’s Compensation

Commission” means the National Commission

on State Workmen’s Compensation Laws

established under this chapter.

92a

29 U.S.C. § 654

Duties of employers and employees

(a)

Each employer—

(1)

shall furnish to each of his employees

employment and a place of employment which

are free from recognized hazards that are

causing or are likely to cause death or serious

physical harm to his employees;

(2)

shall comply with occupational safety

and health standards promulgated under this

chapter.

(b)

Each employee shall comply with occupational

safety and health standards and all rules, regulations,

and orders issued pursuant to this chapter which are

applicable to his own actions and conduct.

93a

29 U.S.C. § 655

Standards

(a)

Promulgation by Secretary of national

consensus standards and established Federal

standards; time for promulgation; conflicting

standards

Without regard to chapter 5 of Title 5 or to the other

subsections of this section, the Secretary shall, as soon

as practicable during the period beginning with the

effective date of this chapter and ending two years

after such date, by rule promulgate as an occupational

safety or health standard any national consensus

standard, and any established Federal standard,

unless he determines that the promulgation of such a

standard would not result in improved safety or health

for specifically designated employees. In the event of

conflict among any such standards, the Secretary shall

promulgate the standard which assures the greatest

protection of the safety or health of the affected

employees.

(b) Procedure for promulgation, modification,

or revocation of standards

The Secretary may by rule promulgate, modify, or

revoke any occupational safety or health standard in

the following manner:

(1)

Whenever the Secretary, upon the basis

of information submitted to him in writing by

an interested person, a representative of any

organization of employers or employees, a

nationally recognized standards-producing

organization, the Secretary of Health and

Human Services, the National Institute for

Occupational Safety and Health, or a State or

94a

political subdivision, or on the basis of

information developed by the Secretary or

otherwise available to him, determines that a

rule should be promulgated in order to serve the

objectives of this chapter, the Secretary may

request the recommendations of an advisory

committee appointed under section 656 of this

title. The Secretary shall provide such an

advisory committee with any proposals of his

own or of the Secretary of Health and Human

Services, together with all pertinent factual

information developed by the Secretary or the

Secretary of Health and Human Services, or

otherwise available, including the results of

research, demonstrations, and experiments. An

advisory committee shall submit to the

Secretary its recommendations regarding the

rule to be promulgated within ninety days from

the date of its appointment or within such

longer or shorter period as may be prescribed by

the Secretary, but in no event for a period which

is longer than two hundred and seventy days.

(2)

The Secretary shall publish a proposed

rule promulgating, modifying, or revoking an

occupational safety or health standard in the

Federal Register and shall afford interested

persons a period of thirty days after publication

to submit written data or comments. Where an

advisory committee is appointed and the

Secretary determines that a rule should be

issued, he shall publish the proposed rule

within sixty days after the submission of the

advisory committee's recommendations or the

95a

expiration of the period prescribed by the

Secretary for such submission.

(3)

On or before the last day of the period

provided for the submission of written data or

comments under paragraph (2), any interested

person may file with the Secretary written

objections to the proposed rule, stating the

grounds therefor and requesting a public

hearing on such objections. Within thirty days

after the last day for filing such objections, the

Secretary shall publish in the Federal Register

a notice specifying the occupational safety or

health standard to which objections have been

filed and a hearing requested, and specifying a

time and place for such hearing.

(4)

Within sixty days after the expiration of

the period provided for the submission of

written data or comments under paragraph (2),

or within sixty days after the completion of any

hearing held under paragraph (3), the Secretary

shall issue a rule promulgating, modifying, or

revoking an occupational safety or health

standard or make a determination that a rule

should not be issued. Such a rule may contain a

provision delaying its effective date for such

period (not in excess of ninety days) as the

Secretary determines may be necessary to

insure that affected employers and employees

will be informed of the existence of the standard

and of its terms and that employers affected are

given an opportunity to familiarize themselves

and their employees with the existence of the

requirements of the standard.

96a

(5)

The

Secretary,

in

promulgating

standards dealing with toxic materials or

harmful physical agents under this subsection,

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.

Development of standards under this

subsection shall be based upon research,

demonstrations, experiments, and such other

information as may be appropriate. In addition

to the attainment of the highest degree of health

and safety protection for the employee, other

considerations shall be the latest available

scientific data in the field, the feasibility of the

standards, and experience gained under this

and other health and safety laws. Whenever

practicable, the standard promulgated shall be

expressed in terms of objective criteria and of

the performance desired.

(6)(A) Any employer may apply to the Secretary

for a temporary order granting a variance from

a standard or any provision thereof

promulgated under this section. Such

temporary order shall be granted only if the

employer files an application which meets the

requirements of clause (B) and establishes that

(i) he is unable to comply with a standard by its

effective date because of unavailability of

professional or technical personnel or of

materials and equipment needed to come into

97a

compliance with the standard or because

necessary construction or alteration of facilities

cannot be completed by the effective date, (ii) he

is taking all available steps to safeguard his

employees against the hazards covered by the

standard, and (iii) he has an effective program

for coming into compliance with the standard as

quickly as practicable. Any temporary order

issued under this paragraph shall prescribe the

practices, means, methods, operations, and

processes which the employer must adopt and

use while the order is in effect and state in

detail his program for coming into compliance

with the standard. Such a temporary order may

be granted only after notice to employees and an

opportunity for a hearing: Provided, That the

Secretary may issue one interim order to be

effective until a decision is made on the basis of

the hearing. No temporary order may be in

effect for longer than the period needed by the

employer to achieve compliance with the

standard or one year, whichever is shorter,

except that such an order may be renewed not

more than twice (I) so long as the requirements

of this paragraph are met and (II) if an

application for renewal is filed at least 90 days

prior to the expiration date of the order. No

interim renewal of an order may remain in

effect for longer than 180 days.

(B) An application for a temporary order

under this paragraph (6) shall contain:

(i) a specification of the standard or

portion thereof from which the employer

seeks a variance,

98a

(ii) a representation by the employer,

supported by representations from qualified

persons having firsthand knowledge of the

facts represented, that he is unable to

comply with the standard or portion thereof

and a detailed statement of the reasons

therefor,

(iii) a statement of the steps he has taken

and will take (with specific dates) to protect

employees against the hazard covered by the

standard,

(iv) a statement of when he expects to be

able to comply with the standard and what

steps he has taken and what steps he will

take (with dates specified) to come into

compliance with the standard, and

(v) a certification that he has informed his

employees of the application by giving a copy

thereof to their authorized representative,

posting a statement giving a summary of the

application and specifying where a copy may

be examined at the place or places where

notices to employees are normally posted,

and by other appropriate means.

A description of how employees have been

informed shall be contained in the

certification. The information to employees

shall also inform them of their right to

petition the Secretary for a hearing.

(C) The Secretary is authorized to grant a

variance from any standard or portion thereof

whenever he determines, or the Secretary of

Health and Human Services certifies, that such

99a

variance is necessary to permit an employer to

participate in an experiment approved by him

or the Secretary of Health and Human Services

designed to demonstrate or validate new and

improved techniques to safeguard the health or

safety of workers.

(7)

Any standard promulgated under this

subsection shall prescribe the use of labels or

other appropriate forms of warning as are

necessary to insure that employees are apprised

of all hazards to which they are exposed,

relevant symptoms and appropriate emergency

treatment, and proper conditions and

precautions of safe use or exposure. Where

appropriate, such standard shall also prescribe

suitable protective equipment and control or

technological procedures to be used in

connection with such hazards and shall provide

for monitoring or measuring employee exposure

at such locations and intervals, and in such

manner as may be necessary for the protection

of employees. In addition, where appropriate,

any such standard shall prescribe the type and

frequency of medical examinations or other

tests which shall be made available, by the

employer or at his cost, to employees exposed to

such hazards in order to most effectively

determine whether the health of such

employees is adversely affected by such

exposure. In the event such medical

examinations are in the nature of research, as

determined by the Secretary of Health and

Human Services, such examinations may be

furnished at the expense of the Secretary of

100a

Health and Human Services. The results of

such examinations or tests shall be furnished

only to the Secretary or the Secretary of Health

and Human Services, and, at the request of the

employee, to his physician. The Secretary, in

consultation with the Secretary of Health and

Human Services, may by rule promulgated

pursuant to section 553 of Title 5, make

appropriate modifications in the foregoing

requirements relating to the use of labels or

other forms of warning, monitoring or

measuring, and medical examinations, as may

be warranted by experience, information, or

medical or technological developments acquired

subsequent to the promulgation of the relevant

standard.

(8)

Whenever a rule promulgated by the

Secretary differs substantially from an existing

national consensus standard, the Secretary

shall, at the same time, publish in the Federal

Register a statement of the r

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