Amicus Curiae Brief — Allstates Refractory Contractors, LLC, Petitioner v. Julie A. Su, Acting Secretary of Labor, et al.

No. 23-819

In the Supreme Court of the United States

ALLSTATES REFRACTORY CONTRACTORS, LLC,

Petitioner,

v.

JULIE A. SU, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMERICAN FARM BUREAU FEDERATION,

NATIONAL ASSOCIATION OF HOME

BUILDERS, NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL CENTER, INC., AND

RESTAURANT LAW CENTER AS AMICI CURIAE IN

SUPPORT OF PETITIONER

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 S. Wacker Dr.

Chicago, IL 60606

(312) 782-0600

tbishop@mayerbrown.com

Additional Counsel Listed On Signature Page

QUESTION PRESENTED

Whether Congress’s delegation of authority in the

Occupational Safety and Health Act, 29 U.S.C.

§§ 652(8), 655(b), to write “reasonably necessary or

appropriate” standards for a “safe” workplace violates

Article I of the U.S. Constitution.

ii

TABLE OF CONTENTS

Page

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

TABLE OF AUTHORITIES...................................... iii

INTEREST OF THE AMICI CURIAE .......................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................3

ARGUMENT ...............................................................6

I. Core constitutional attributes require the

application of a strong nondelegation rule. ..........6

A. The Constitutional text ....................................7

B. The separation of powers principle ..................8

C. The political philosophy embodied in

the Constitution .............................................. 10

D. Invocation of the nondelegation rule by

founding-era Congress.................................... 11

E. The long-acknowledged need for judicial

intervention .................................................... 12

F. A strong nondelegation analysis does

not unduly impede government. .................... 13

II. OSHA’s workplace safety rules are an

unconstitutional delegation of the

legislative powers. ................................................ 16

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ....................................... 7, 16

Biden v. Nebraska,

143 S. Ct. 2355 (2023) ....................................... 10

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 9

Dep’t of Transp. v. Ass’n of Am. Railroads,

575 U.S. 43 (2015) ............................................... 7

Field v. Clark,

143 U.S. 649 (1892) ........................................... 12

Guedes v. Bureau of Alcohol,

66 F.4th 1018 (D.C. Cir. 2023) ........................... 3

Gundy v. United States,

139 S. Ct. 2116 (2019) ......................... 5, 8, 13, 18

I.N.S. v. Chadha,

462 U.S. 919 (1983) ............................................. 8

J.W. Hampton, Jr. & Co. v. United States,

276 U.S. 394 (1928) ....................................... 7, 13

Mistretta v. United States,

488 U.S. 361 (1989) ................................. 9, 10, 17

iv

TABLE OF AUTHORITIES—continued

Page(s)

National Cable Television Ass’n v. United

States,

415 U.S. 336 (1974) ............................................. 7

NFIB v. Dep’t of Lab.,

142 S. Ct. 661 (2022) ........................................... 7

Paul v. United States,

140 S. Ct. 342 (2019) ........................................... 5

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ......................................... 4

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ......................................... 8

Wayman v. Southard,

23 U.S. 1 (1825) ................................................. 12

West Virginia v. EPA,

142 S. Ct. 2587 (2022) ............................... 6, 7, 13

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ................................... 7, 8, 12

Constitution, Statutes, and Regulations

U.S. Const.

art. I, § 1 ...................................................... 3, 7, 8

art. I, § 8 .................................................. 8, 11, 16

art. IV, § 4............................................................ 4

v

TABLE OF AUTHORITIES—continued

Page(s)

29 U.S.C.

§ 652(8) .......................................................... 4, 17

§ 652(9) ........................................................ 17, 18

§ 655(a) .............................................................. 17

§ 655(b) ................................................................ 2

42 U.S.C.

§ 7412................................................................. 14

§ 7412(a)(7) ........................................................ 14

§ 7412(a)(11) ...................................................... 15

§ 7412(b)(1) ........................................................ 14

§ 7412(b)(2) ........................................................ 14

Fair Housing Act, 42 U.S.C. § 3604 ....................... 15

Miscellaneous

Amy Coney Barrett, Suspension and

Delegation, 99 Cornell L. Rev. 251 (2014) .......... 3

Br. of Eight National Business

Organizations as Amici Curiae In

Support of Ptn'rs at 8-18, Loper Bright

Enters. v. Raimondo, No. 22-451 (S. Ct.) ......... 12

Gabriel Clark, The Weak Nondelegation

Doctrine and American Trucking

Associations v. EPA, 2000 B.Y.U.L. Rev.

627 (2000) ............................................................ 9

John Hart Ely, Democracy and Distrust: A

Theory of Judicial Review 132 (1980) .............. 10

vi

TABLE OF AUTHORITIES—continued

Page(s)

The Federalist No. 52 (Madison) (Jacob E.

Cooke ed., 1961). ............................................... 10

Elena Kagan, Presidential Administration,

114 Harvard L. Rev. 2245 (2001) ....................... 3

NAHB, Safety 365,

https://nahb.org/advocacy/industryissues/safety-and-health/ safety-365 .................. 2

Antonin Scalia, A Note on the Benzene Case,

4 Regul. 25 (July/Aug. 1980)............................. 12

Chad Squitieri, Towards Nondelegation

Doctrines, 86 Mo. L. Rev. 1239 (2021) .............. 11

INTEREST OF THE AMICI CURIAE1

The American Farm Bureau Federation (AFBF)

was formed in 1919 and is the largest nonprofit general farm organization in the United States. Representing about six million member families in all 50

states and Puerto Rico, AFBF’s members grow and

raise every type of agricultural crop and commodity

produced in the United States. AFBF’s mission is to

protect, promote, and represent the interests of American farmers and ranchers.

The National Association of Home Builders

(NAHB) is a trade association whose mission is to enhance the climate for housing and the building industry. NAHB seeks to provide and expand opportunities

for safe, decent, and affordable housing. Founded in

1942, NAHB is a federation of more than 700 state

and local associations. About one-third of NAHB’s approximately 120,000 members are home builders or

remodelers, who construct 80% of all homes in the

United States. The remaining members are associates

working in closely related fields within the housing industry, such as environmental consulting, mortgage

finance and building products and services. Among

other things, NAHB provides educational resources to

its members, including the International Builders’

Show, which is the world’s largest show for the residential and light commercial construction industry

and features more than 100 education sessions. Further, NAHB provides a robust array of educational

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici and their counsel made a monetary contribution to

its preparation or submission. Counsel of record for all parties

received notice at least 10 days prior to the due date of the intention of amici to file this brief.

1

2

resources, safety training materials, and other content to educate employers and employees about workplace safety, including the Safety 365 initiative to

keep construction workers safe.2

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal Center) is a nonprofit, public interest law firm established

to provide legal resources and be the be voice for small

businesses in the Nation’s courts through representation on issues of public interest affecting small businesses. It is an affiliate of the National Federal of Independent Business (NFIB), which is the nation’s

leading small business association. NFIB’s mission is

to promote and protect the right of its members to

own, operate, and grow their businesses. NFIB represents the interests of its members in Washington,

D.C., and all 50 state capitals.

The Restaurant Law Center (Law Center) is the

only independent public policy organization created

specifically to represent the interests of the food service industry in the courts. This labor-intensive industry is comprised of over one million restaurants and

other foodservice outlets employing nearly 16 million

people—approximately 10 percent of the U.S. workforce. Restaurants and other foodservice providers are

the second largest private sector employers in the

United States.

Thousands of amici’s members are employers who

are subject to workplace-safety standards issued by

the Occupational Safety and Health Administration

(OSHA) under the Occupational Safety and Health

Act (the Act), 29 U.S.C. § 655(b). The Sixth Circuit’s

2 NAHB, Safety 365, https://nahb.org/advocacy/industry-is-

sues/safety-and-health/ safety-365.

3

decision rejecting Allstates’ challenge to OSHA’s authority to issue workplace-safety standards directly

impacts amici’s members’ interests in ensuring that

the workplace-safety rules to which they are subject

are validly enacted.

Amici each proactively participate as party litigants or amici where litigation involves issues that

impact their members’ interests. To that end, amici

offer insights to aid this Court’s consideration of Allstates’ petition for certiorari.

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici submit this brief to explain the importance

of a strong nondelegation doctrine, which is a “fundamental, founding principle” of our Constitution. Allstates Refractory Contractors LLC v. Walsh, 79 F.4th

755, 770 (6th Cir. 2023) (Nalbandian, J, dissenting)

(cited hereafter to the Petition Appendix). That doctrine has become a virtual dead letter, as then-Professor Kagan wrote. Elena Kagan, Presidential Administration, 114 Harvard L. Rev. 2245, 2364 (2001) (“It

is . . . a commonplace that the nondelegation doctrine

is no doctrine at all”); see also Amy Coney Barrett,

Suspension and Delegation, 99 Cornell L. Rev. 251,

318 & n.285 (2014) (discussing the “notoriously lax ‘intelligible principle’ test”); Guedes v. Bureau of Alcohol,

66 F.4th 1018, 1031 (D.C. Cir. 2023) (Walker, J., dissenting from denial of rehearing) (describing the

“light-touch nondelegation doctrine”). Serious application of the doctrine, however, is necessary to safeguard multiple aspects of the Framers’ constitutional

design.

First, the text of the Constitution vests the “legislative powers” exclusively in the legislature. U.S.

4

Const. art. I, § 1. Accordingly, the Framers’ plain language requires meaningful scrutiny to determine

whether another branch of government is improperly

undertaking legislative tasks.

Second, protection of the broader separation of

powers principle, which does not appear explicitly in

the constitutional text but unquestionably defines the

shape of our government, similarly necessitates a

meaningful look at whether Congress has impermissibly authorized another branch of government to exercise legislative powers.

Third, the Constitution embodies the Framers’ intention to create a republican form of government. But

this form of American government does not authorize

the people’s agent—Congress—to then delegate that

power to another branch of government. See Rucho v.

Common Cause, 139 S. Ct. 2484, 2511 (2019) (Kagan,

J., dissenting) (“Republican liberty demands not only,

that all power should be derived from the people; but

that those entrusted with it should be kept in dependence on the people”) (cleaned up). Congressional delegation of the legislative power threatens the republican form of government guaranteed by the Constitution. See U.S. Const. art. IV, § 4 (“The United States

shall guarantee to every State in this Union a Republican Form of Government”).

This Court’s jurisprudence currently requires

Congress to provide an “intelligible principle” to govern an agency’s exercise of discretion in performing its

delegated duties. As Judge Nalbandian concluded in

dissent in the Sixth Circuit, 29 U.S.C. § 652(8) does

not supply an intelligible principle to guide OSHA in

its promulgation of safety standards. Pet.App. 41a42a. Far from it: the unbounded and sweeping delegation to OSHA of the powers both to create workplace-

5

safety standards—a legislative function—and then to

enforce those rules against countless employers cannot be tolerated under existing precedent. As the dissent below properly concluded, OSHA’s permanentstandards provision falls far short of supplying an “intelligible principle” because it “requires no fact-finding or situation to arise before agency actions tak[e]

place” and “provides no standard that sufficiently

guides the exercise of the broad authority vested in

the Secretary” of Labor. Pet. App. 41a.

That said, the malleable and often laxly applied

“intelligible principle” standard provides inadequate

protection for core constitutional values. As a majority

of this Court has recognized, it is ripe for reconsideration. See Gundy v. United States, 139 S. Ct. 2116, 2140

(2019) (Gorsuch, J., dissenting) (joined by Roberts,

C.J., and Thomas, J.) (discussing “the abused ‘intelligible principle’ doctrine”); id. at 2031 (Alito, J., concurring) (“If a majority of this Court were willing to

reconsider the approach we have taken [with regard

to the nondelegation doctrine] for the past 84 years, I

would support that effort”); Paul v. United States, 140

S. Ct. 342, 342 (2019) (statement of Kavanaugh, J.,

respecting denial of certiorari) (“Justice Gorsuch’s

scholarly analysis of the Constitution’s nondelegation

doctrine in his Gundy dissent may warrant further

consideration in future cases”). It is time for this

Court to revisit the “intelligible principle” standard

and to replace or refine it to better serve the purpose

of the nondelegation doctrine. This case is an excellent

vehicle in which to do so.

The common defense of the lax approach to delegation is that the much greater complexity of modern

society compared to the United States of the late

Eighteenth Century means that Congress must have

6

latitude to alienate its legislative powers to specialist

agencies because it lacks the knowledge itself to legislate clear standards for agencies to follow. But the

Framers intended the passage of legislation to be a

difficult task carefully undertaken by the branch of

government most directly responsive to the will of the

people. See West Virginia v. EPA, 142 S. Ct. 2587,

2618 (2022) (Alito, J., concurring) (“[T]he framers deliberately sought to make lawmaking difficult by insisting that two houses of Congress must agree to any

new law and the President must concur or a legislative supermajority must override his veto”). Indeed,

“[t]he Framers understood that lawmaking involved

‘hard choices.’” Pet. App. 25a (quoting Tiger Lilly, LLC

v. U.S. Dep’t of Hous. & Urb. Dev., 5 F.4th 666, 674

(6th Cir. 2021) (Thapar, J., concurring)). And Congress has been able to enact many complex statutes

that confer specific enough guidance to agencies,

along with a permissible amount of executive discretion to implement that guidance, without violating the

nondelegation principle of Article I. In short, Congress

is certainly up to the tough tasks the Constitution assigns it of being the sole source of federal legislation.

ARGUMENT

I.

Core constitutional attributes require the

application of a strong nondelegation rule.

This Court’s review is needed because a strong

nondelegation standard is necessary to safeguard keystone features of our Constitution. The decades-long

judicial path towards a watered-down nondelegation

test—perpetuated by the Sixth Circuit ruling here

that the intelligible principle standard “permit[s]

broad delegations,” Pet. App. 8a—is inconsistent with

the exclusive reservation of the legislative power to

7

Congress and with the role of the people as the ultimate source of that legislative power.

In the absence of a rigorous nondelegation doctrine, this Court has developed substitutes that seek

to narrow ambiguous statutory delegations or more

directly curtail agency discretion. Doctrines like “void

for vagueness,” the rule of lenity, and a host of clear

statement rules, including the “major questions” doctrine (see NFIB v. Dep’t of Lab., 142 S. Ct. 661 (2022);

West Virginia v. EPA, 142 S. Ct. 2587 (2022)), fill in

for some of the functions of the nondelegation principle. So does the principle that statutes will be read

narrowly to avoid constitutional problems. E.g., National Cable Television Ass’n v. United States, 415

U.S. 336, 342 (1974) (“Whether the present Act meets

the [nondelegation] requirement of Schechter and

Hampton is a question we do not reach. But the hurdles revealed in those decisions lead us to read the Act

narrowly to avoid constitutional questions”). None of

those approaches, however, fully serve the constitutional principles we now discuss.

A. The Constitutional text

The Vesting Clause of Article I provides that “[a]ll

legislative powers herein granted shall be vested in a

Congress of the United States, which shall consist of

a Senate and House of Representatives.” U.S. Const.

art. I, § 1. By its plain text, that is an exclusive grant

of authority to Congress to exercise the “legislative

powers” of government. Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 472 (2001). The text “permits no

delegation of those powers.” Ibid. Simply, “[w]hen the

Government is called upon to perform a function that

requires an exercise of legislative . . . power, only the

vested recipient of that power can perform it.” Dep’t of

Transp. v. Ass’n of Am. Railroads, 575 U.S. 43, 68

8

(2015) (Thomas, J., concurring). And “[n]o one, not

even Congress, ha[s] the right to alter that arrangement.” Gundy, 139 S. Ct. at 2133 (Gorsuch, J., dissenting). Accordingly, an agency cannot correct an insufficiently specific delegation by adopting its own narrowing set of operating constraints: as this Court said in

Whitman, “[w]e have never suggested that an agency

can cure an unlawful delegation of legislative power

by adopting in its discretion a limiting construction of

the statute.” 531 U.S. at 472.

Article I also provides Congress with the power to

“make all Laws which shall be necessary and proper

for carrying into execution” its powers. U.S. Const.

art. I, § 8. This Necessary and Proper Clause reinforces that legislative power lies with Congress alone,

because it authorizes Congress to enact provisions

that task another branch of government to assist with

the execution of the law. In that way the plain text of

Article I’s Vesting and Necessary and Proper Clauses

draws a jurisdictional distinction between legislative

and executive powers.

B. The separation of powers principle

Article I, § 1 parallels the separate executive and

judicial Vesting Clauses in Article II, § 1 and Article

III, § 1, respectively. Together, those clauses articulate the separation of powers principle embedded in

Constitution. See Seila Law LLC v. CFPB, 140 S. Ct.

2183, 2229 (2020) (Kagan, J., concurring in part) (the

separation of powers principle is “carved into the Constitution’s text” in the “first three articles”).

Thus, separation of powers “‘[is] not simply an abstract generalization in the minds of the Framers: it

was woven into the documents that they drafted in

Philadelphia in the summer of 1787.’” I.N.S. v.

9

Chadha, 462 U.S. 919, 946 (1983) (quoting Buckley v.

Valeo, 424 U.S. 1, 124 (1976)). “Of all ‘principles in our

Constitution,’ none is ‘more sacred than that which

separates the legislative, executive and judicial powers.’” Pet. App. 25a (Nalbandian, J., dissenting) (quoting Myers v. United States, 272 U.S. 52, 116 (1926))

(cleaned up).

As James Madison wrote, the necessity of separating the three branches of government prevents concentration of too much power in the hands of any one

branch. The Federalist No. 47, at 324-31 (Madison)

(Jacob E. Cooke ed., 1961). And the system of checks

and balances—illustrated for instance in the Presentment Clause of Article I, § 7, requiring all laws to be

presented by Congress to the President for signature

or veto—“reinforces the principle that one branch

should not exercise another branch’s powers.” Gabriel

Clark, The Weak Nondelegation Doctrine and American Trucking Associations v. EPA, 2000 B.Y.U.L. Rev.

627, 631 (2000) (citing The Federalist No. 48 (Madison) (Jacob E. Cooke ed., 1961)); see Clinton v. City of

New York, 524 U.S. 417, 448 (1998) (striking down the

Line Item Veto Act because it delegated legislative

power to the President, circumventing the Presentment Clause).

Protecting the separation of powers, this Court

has recognized, is the purpose of the nondelegation

doctrine. See, e.g., Mistretta v. United States, 488 U.S.

361, 371 (1989) (“The nondelegation doctrine is rooted

in the principle of separation of powers that underlies

our tripartite system of Government”).

10

C. The political philosophy embodied in the

Constitution

To the Framers, the legislature must have “an immediate dependence on, & an intimate sympathy with

the people. Frequent elections are unquestionably the

only policy by which this dependence and sympathy

can be effectually secured.” The Federalist No. 52 at

355 (Madison) (Jacob E. Cooke ed., 1961). Delegation

of legislative power to an unelected administrative bureaucracy would remove the legislative function from

the “immediate dependence on” and the “intimate

sympathy with” the people that Madison declared essential to our political system. Ibid. As Judge Nalbandian recognized below, the Framers “placed the

legislative powers into the hands of the branch that

was most accountable to the people” and “‘the people

could respond, and respond swiftly’ to remedy any

‘misus[e] of power.’” Pet. App. 25a (quoting Tiger Lily,

5 F.4th at 674 (Thapar, J., concurring)).

As John Hart Ely explained, “by refusing to legislate” in favor of passing the buck to unelected agencies, “our legislators are escaping the sort of accountability that is crucial to the intelligible functioning of

a democratic republic.” John Hart Ely, Democracy and

Distrust: A Theory of Judicial Review 132 (1980). The

lax version of the intelligible principle test allows Congress to refuse to legislate and instead pass the buck

to unelected executive officials: as so applied, the doctrine “largely leaves Congress to self-police.” Biden v.

Nebraska, 143 S. Ct. 2355, 2378 (2023) (Barrett, J.,

concurring).

11

D. Invocation of the nondelegation rule by

founding-era Congress

These fundamental points—based on constitutional text, context, structure, and underlying framing-era political philosophy—all point to the necessity

of engaging in a searching inquiry to determine

whether Congress delegated its legislative powers in

a particular instance. The early Congresses shared

this understanding. For instance, one of the specifically enumerated legislative powers is the authority

to “establish post offices and post roads.” U.S. Const.

art. I, § 8, cl. 7. During the Second Congress, the

House considered a bill to establish the national post

office that also detailed specific “post routes.” Chad

Squitieri, Towards Nondelegation Doctrines, 86 Mo. L.

Rev. 1239, 1253-54 (2021). Representative Sedgwick

introduced an amendment that replaced the detailed

routes with a provision that allowed the President to

establish the particular post roads as he saw fit. Id. at

1254. In rejecting that amendment, several congressmen invoked the nondelegation rule. Representative

Livermore stated that Congress could not “with propriety delegate that power, which they were themselves appointed to exercise.” Ibid. Representative

Hartley agreed, arguing that Congress “ought not to

delegate the power to any other person.” Ibid. And

Madison stated that “there did not appear to be any

necessity for alienating the powers of the House, and

that if this should take place, it would be a violation

of the Constitution.” Ibid. (citing 3 Annals of Congress

229-39 (1791) (Joseph Gales ed., 1849)). Congress has

since expressly delegated to the Postal Service the

power to structure postal routes to meet its statutory

universal service obligation, but the debate during the

Second Congress shows how seriously the Framers’

generation took the nondelegation rule.

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E. The long-acknowledged need for judicial

intervention

This Court long ago recognized the need for judicial enforcement of the nondelegation doctrine. See

Field v. Clark, 143 U.S. 649, 692 (1892); Wayman v.

Southard, 23 U.S. 1, 43 (1825). Otherwise, as thenProfessor Scalia pointed out, it would ultimately be

courts, not Congress, that upon reviewing agency action would have to supply the legislative content that

Congress failed to adopt. See Antonin Scalia, A Note

on the Benzene Case, 4 Regul. 25 (July/Aug. 1980).

And that constitutional difficulty is all the more severe now that the doctrine of Chevron deference to

agency interpretations of ambiguous statutes is in decline, if not already completely dead. See Br. of Eight

National Business Organizations as Amici Curiae In

Support of Ptn’rs at 8-18, Loper Bright Enters. v. Raimondo, No. 22-451 (S. Ct.) (arguing that Chevron is

irreconcilable with separation of powers, the Administrative Procedure Act, and jurisprudential history).

Absent deference, the buck passed by Congress falls

ultimately on the courts, though they are designated

by Article III to exercise only the judicial and not the

legislative power. See Whitman, 531 U.S. at 473 (for

judges to supply “the standard that Congress had

omitted” is an exercise of “forbidden legislative authority”).

The best way out of this bind is for courts to dutifully enforce the nondelegation doctrine—starting in

cases like this which involve the delegation of major,

nationwide policy questions with important consequences for American industry. As Justice Gorsuch

has stated, “[t]he framers knew” that “the job of keeping the legislative power confined to the legislative

branch couldn’t be trusted to self-policing by

13

Congress; often enough, legislators will face rational

incentives to pass problems to the executive branch.”

Gundy, 139 S. Ct. at 2135 (Gorsuch, J., dissenting).

Therefore, meaningful judicial enforcement of the

nondelegation doctrine is necessary to “respec[t] the

people’s sovereign choice to vest the legislative power

in Congress alone. And it’s about safeguarding a

structure designed to protect [the people’s] liberties,

minority rights, fair notice, and the rule of law.” Ibid.

Neither executive agencies nor courts should be legislating; enforcing the nondelegation doctrine will ensure they do not do so.

F. A strong nondelegation analysis does not

unduly impede government.

Critics suggest that strong judicial policing of legislative delegations is inconsistent with the increasingly complex demands of modern society. To be sure,

the Court has recognized that “common sense and the

inherent necessities of the governmental co-ordination” require Congress to delegate discretion in the

implementation of its policies. J.W. Hampton, Jr. &

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

even the increasing complexities of the modern world

do not permit Congress to shift its prerogative to set

policy to an executive administrative apparatus. Madison acknowledged that the constitutional design—requiring bicameral support for legislation and then approval of the chief executive—makes it difficult to

pass laws. See West Virginia, 142 S. Ct. at 2618 (Alito,

J., concurring). But that is a feature of the constitutional system, not a flaw. And this case does not involve the executive bureaucracy merely filling in minor details of a scheme that has been well defined by

Congress, but the delegation of major policy decisions

with great practical scope and effect—precisely the

14

sort of policy that Congress, as the branch of government most responsive to the people, is charged with

setting.

Further, Congress understands how to cabin

agency discretion with regard to health and safety

standards by providing sufficient statutory guidance,

even in technically complex areas. For instance, Congress in the Clean Air Act authorized the EPA to regulate certain sources of hazardous air pollutants,

which are defined in 42 U.S.C. § 7412. Section

7412(b)(1) lists specific pollutants, while § 7412(b)(2)

allows the EPA to add additional pollutants. But the

latter provision provides specific, detailed guidance on

what pollutants may be added by the agency:

[P]ollutants which present, or may present, through inhalation or other routes

of exposure, a threat of adverse human

health effects (including, but not limited

to, substances which are known to be, or

may reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction, or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations, bioaccumulation, deposition, or

otherwise.

Id., § 7412(b)(2). “Adverse environmental effect” is

further defined in the statute as “any significant and

widespread adverse effect, which may reasonably be

anticipated, to wildlife, aquatic life, or other natural

resources, including adverse impacts on populations

of endangered or threatened species or significant

degradation of environmental quality over broad areas.” Id., § 7412(a)(7). And Congress expressly

15

adopted the criteria EPA had set forth in its “Guidelines for Carcinogenic Risk Assessment,” permitting

the agency to revise them “subject to notice and opportunity for comment.” Id., § 7412(a)(11).

Another example is the design and construction

requirements that Congress set forth in the antidiscrimination provisions of the Fair Housing Act, 42

U.S.C. § 3604, which closely guide the Department of

Housing and Urban Development’s implementing regulations. Those provisions, which apply to multi-family housing, require that in covered housing “the public use and common use portions” are “readily accessible to and usable by handicapped persons”; “all the

doors designed to allow passage into and within all

premises” are “sufficiently wide” to allow passage by

wheelchairs; and that apartments contain “an accessible route into and through the dwelling,” “light

switches, electrical outlets, thermostats, and other environmental controls in accessible locations,” “reinforcements in bathroom walls to allow later installation of grab bars,” and wheelchair-maneuverable

“kitchens and bathrooms.” Id., § 3604(f)(3)(C). And it

provides that “[c]ompliance with the appropriate requirements of the American National Standard for

buildings and facilities providing accessibility and usability for physically handicapped people (commonly

cited as ‘ANSI A117.1’)” satisfies the requirements for

accessible dwellings. Id., § 3604(f)(4).

These examples show how Congress may retain

its policy-setting power and pass a law that allows an

executive agency to make relevant fact-findings and

to assist with the execution of the statute. They also

illustrate that Congress is capable of availing itself of

the expertise of an agency and adopting its considered

recommendations (such as EPA’s cancer risk

16

guidelines) into law, and of looking to standards developed by industry experts and approved by organizations such as the American National Standards Institute. Congress is capable of setting clear, detailed

standards to guide agencies, and at the same time

leaving room for agency input. A strong nondelegation

doctrine thus would not unduly impede Congress or

prevent it from carrying out its constitutionally mandated duties in technically complicated areas.

II. OSHA’s workplace safety rules are an unconstitutional delegation of the legislative powers.

Amici agree with Judge Nalbandian’s thorough

analysis showing that the essentially standardless

grant of discretion to create workplace-safety rules is

an unconstitutional delegation by Congress of its legislative powers to an executive branch agency. Amici

also agree with petitioner’s analysis that the Sixth

Circuit majority’s decision cannot be squared with

this Court’s precedent such as Panama Refining Co.

and A.L.A. Schechter Corp. As discussed above, the

Framers intended that only Congress could make

laws, including the broad authority to regulate commerce. U.S. Const. art. I, § 8, cl. 3. Further, the Framers expressly provided Congress with the authority to

enact statutes that were necessary and property to execute those laws. Id., § 8, cl. 18. But instead of passing

such laws, Congress impermissibly abdicated its duties and directed OSHA to both enact and execute

workplace-safety laws.

This Court’s current precedent holds that the nondelegation doctrine “does not prevent Congress from

obtaining the assistance of its coordinate Branches” so

long as it “‘shall lay down by legislative act an intelligible principle to which the person or body authorized

17

to exercise the delegated authority is directed to conform.’” Mistretta, 488 U.S. at 372 (alteration omitted)

(quoting J.W. Hampton, 276 U.S. at 409). The problem

with that standard is that it is vague and malleable

and is applied differently by different judges, resulting in inconsistent enforcement of the nondelegation

principle. For the reasons described in Part I, this

Court should grant plenary review and give teeth to—

or replace—the intelligible principle standard and

should reject the watered down version used by the

panel majority. Here, to hold that Congress must legislate policy and agencies only implement it would require also holding that Congress failed to provide a

sufficiently definite and discernible principle for creation of workplace safety regulations in the Act.

Striking down Congress’s delegation of power to

OSHA to adopt any safety standard it deems “reasonably necessary or appropriate to provide safe or

healthful employment and places of employment” (29

U.S.C. § 652(8)) would not result in the elimination of

such standards generally. To begin with, petitioner

seeks only an injunction limited to the parties. Furthermore, 29 U.S.C. § 655(a) provides for safety rules

based not on a vague direction to OSHA to do what it

deems “appropriate,” but on “any national consensus

standard.” And 29 U.S.C. § 652(9) defines that term in

a concrete manner to mean a standard that “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” (subject to certain procedural

safeguards). There is no reason to believe that any significant number of safety standards would fall as a result of following the Constitution’s mandate.

18

Certainly, amici do not advocate the elimination

of workplace-safety rules. To the contrary, workplace

safety is a critical part of NAHB’s mission and NAHB

devotes significant resources to providing employers

and employees with training and tools to safeguard

construction workers and others in the workplace.

Likewise, AFBF, NFIB, and Law Center members

rely on safety standards in operating their businesses.

But the sources of those rules must be the subject matter experts in the industry, who unquestionably have

the most knowledge about the operation of housing

construction sites, as Congress recognized in § 652(9).

Or the source must be Congress itself through duly

enacted legislation that provides more specific direction to OSHA.

As pointed out by Judge Nalbandian and petitioner, a broad delegation of policy-making power to

an administrative agency to set such rules is not only

irreconcilable with the principles upon which the

American government rests but also may be contrary

to the best-practices employers have developed from

experience for their own industry and work sites. In

any event, employers and employees alike should desire adherence to the basic principle that Congress, as

the people’s agent directly subject to the people’s will,

is the only branch of federal government that can create laws, leaving agencies like OSHA to implement

them. As Justice Gorsuch observed in Gundy, “while

Congress can enlist considerable assistance from the

executive branch in filling up details and finding facts,

it may never hand off to the nation's chief prosecutor

the power to write his own criminal code. That ‘is delegation running riot.’” 139 S. Ct. at 2148 (quoting

A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 553 (1935) (Cardozo, J., concurring)).

19

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted.

ELLEN STEEN

TRAVIS CUSHMAN

American Farm Bureau

Federation

600 Maryland Ave. SW

Suite 1000W

Washington, DC 20024

TIMOTHY S. BISHOP

Counsel of Record

BRETT E. LEGNER

Mayer Brown LLP

71 S. Wacker Dr.

Chicago, IL 60606

(312) 782-0600

tbishop@mayerbrown.com

THOMAS J. WARD

National Association of

Home Builders

1201 15th Street, N.W.

Washington, DC 20005

ANGELO I. AMADOR

Restaurant Law Center

2055 L Street, NW

Suite 700

Washington, DC 20036

ELIZABETH GAUDIO MILITO

NFIB Small Business

Legal Center, Inc.

555 12th Street, N.W.

Suite 1001

Washington, DC 20004

Counsel for Amici Curiae

FEBRUARY 2024