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

ALLSTATE 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 AMICI CURIAE

STATE OF WEST VIRGINIA, 22 OTHER STATES,

AND THE ARIZONA LEGISLATURE

IN SUPPORT OF PETITIONER

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Principal Deputy

Solicitor General

SPENCER J. DAVENPORT

Assistant Solicitor

General

Counsel for Amicus Curiae State of West Virginia

[additional counsel listed after signature page]

QUESTION PRESENTED

Whether Congress’s delegation of authority to the

Occupational Safety and Health Administration to

write “reasonably necessary or appropriate”

workplace-safety standards, 29 U.S.C. §§ 652(8),

655(b), violates Article I of the U.S. Constitution.

II

TABLE OF CONTENTS

Question Presented ..................................................... I

Introduction and Interests of Amici Curiae ............... 1

Summary of Argument ................................................ 3

Reasons for Granting the Petition .............................. 4

I.

The Nondelegation Doctrine Is In Crisis ............. 4

II. The States Need A Strong Nondelegation

Doctrine—And Modern Regulation

Can Survive It .................................................... 10

III. This Case Is A Good Vehicle ............................... 19

Conclusion .................................................................. 24

III

TABLE OF AUTHORITIES

Page(s)

Cases

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

States,

295 U.S. 495 (1935) ....................................... 6, 20

Barr v. DOJ,

819 F.2d 25 (2d Cir. 1987)................................... 3

Bond v. United States,

564 U.S. 211 (2011) ........................................... 14

Bradford v. U.S. Dep’t of Lab.,

582 F. Supp. 3d 819 (D. Colo. 2022) ................... 9

In re Certified Questions From United States

Dist. Ct., W. Dist. of Mich., S. Div.,

958 N.W.2d 1 (Mich. 2020)................................ 18

City of Arlington v. FCC,

569 U.S. 290 (2013) ............................................. 7

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 8

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

575 U.S. 43 (2015) ......................................... 7, 10

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ........................................... 14

Granados v. Garland,

17 F.4th 475 (4th Cir. 2021) ............................... 9

Gundy v. United States,

139 S. Ct. 2116 (2019) ............. 2, 5, 6, 8, 9, 10, 17

IV

TABLE OF AUTHORITIES

(continued)

Page(s)

Indus. Union Dep’t, AFL-CIO v. Am.

Petroleum Inst.,

448 U.S. 607 (1980) ....................................... 5, 17

Int’l Union, United Auto., Aerospace & Agr.

Implement Workers of Am., UAW v.

OSHA,

938 F.2d 1310 (D.C. Cir. 1991) ......................... 21

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

276 U.S. 394 (1928) ............................................. 6

Jarkesy v. SEC,

34 F.4th 446 (5th Cir. 2022), cert.

granted 143 S. Ct. 2688 (2023) ........................... 9

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892) ............................................. 1

Mich. Gambling Opposition v. Kempthorne,

525 F.3d 23 (D.C. Cir. 2008) ............................... 9

Michigan v. EPA,

576 U.S. 743 (2015) ........................................... 20

Mistretta v. United States,

488 U.S. 361 (1989) ................................. 6, 11, 20

N.Y. Cent. Sec. Corp. v. United States,

287 U.S. 12 (1932) ............................................. 21

Nat’l Broad. Co. v. United States,

319 U.S. 190 ...................................................... 21

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ........................................... 14

V

TABLE OF AUTHORITIES

(continued)

Page(s)

NFIB v. OSHA,

595 U.S. 109 (2022) ....................................... 4, 16

Panama Refin. Co. v. Ryan,

293 U.S. 388 (1935) ............................................. 6

Paul v. United States,

140 S. Ct. 342 (2019) ........................................... 8

Seila Law LLC v. CFPB,

140 S. Ct. 2183 (2020) ......................................... 3

Stern v. Marshall,

564 U.S. 462 (2011) ............................................. 3

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940) ........................................... 21

Synar v. United States,

626 F. Supp. 1374 (D.D.C. 1986) ...................... 21

Tiger Lily, LLC v. U.S. Dep’t of Hous. &

Urb. Dev.,

5 F.4th 666 (6th Cir. 2021) ............................... 11

United States v. Comstock,

560 U.S. 126 (2010) ........................................... 20

United States v. Melgar-Diaz,

2 F.4th 1263 (9th Cir. 2021) ............................... 9

United States v. Nichols,

784 F.3d 666 (10th Cir. 2015) ............................. 8

Wayman v. Southard,

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

VI

TABLE OF AUTHORITIES

(continued)

Page(s)

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001) ....................................... 4, 12

Yakus v. United States,

321 U.S. 414 (1944) ....................................... 5, 21

Statutes

29 U.S.C. § 651 ....................................................... 19

29 U.S.C. § 652 ....................................................... 19

29 U.S.C. § 655 ....................................................... 19

29 U.S.C. § 667 ....................................................... 22

Pub. L. No. 107-56, 115 Stat. 272 (2001) ............... 11

Other Authorities

122 CONG. REC. 31,628 (1976) ................................ 17

6 David B. Torrey & Andrew E. Greenberg,

Secondary purpose: The safety objective,

in PENNSYLVANIA WORKERS’

COMPENSATION: LAW & PRACTICE § 1:24

(4th ed., Sept. 2022, update) ............................. 23

Aaron Gordon, Nondelegation

Misinformation: A Reply to the Skeptics,

75 BAYLOR L. REV. 152 (2023) ............................. 5

Amy Coney Barrett, Suspension and

Delegation, 99 CORNELL L. REV. 251

(2014). .................................................................. 7

Benjamin Silver, Nondelegation in the

States, 75 VAND. L. REV. 1211 (2022) ................. 9

VII

TABLE OF AUTHORITIES

(continued)

Page(s)

Bradford R. Clark, Separation of Powers As

A Safeguard of Federalism, 79 TEX. L.

REV. 1321 (2001)................................................ 14

Calvin R. Massey, The Tao of Federalism,

20 HARV. J.L. & PUB. POL’Y 887 (1997) ............. 15

Cass R. Sunstein, Is the Clean Air Act

Unconstiutitonal?, 98 MICH. L. REV. 303

(1999) ................................................................. 12

Cass R. Sunstein, Is OSHA

Unconstitutional?, 94 VA. L. REV. 1407

(2008) ..................................................... 16, 19, 20

Cass R. Sunstein, Nondelegation Canons, 67

U. CHI. L. REV. 315 (2000)............................... 7, 9

Charles Davant IV, Sorcerer or Sorcerer’s

Apprentice?: Federal Agencies and the

Creation of Individual Rights, 2003 WIS.

L. REV. 613 (2003) ............................................. 16

Cody Ray Milner, Into the Multiverse:

Replacing the Intelligible Principle

Standard with A Modern Multi-Theory of

Nondelegation, 28 GEO. MASON L. REV.

395 (2020) .......................................................... 10

D.A. Candeub, Tyranny and Administrative

Law, 59 ARIZ. L. REV. 49 (2017) ........................ 12

VIII

TABLE OF AUTHORITIES

(continued)

Page(s)

D. Bruce La Pierre, Political Accountability

in the National Political Process-the

Alternative to Judicial Review of

Federalism Issues, 80 NW. U. L. REV. 577

(1985) ................................................................. 15

D. Chambers, C.A. Collins, A. Krause, How

Do Federal Regulations Affect Consumer

Prices? Analysis of the Regressive Effects

of Regulation, 180 PUB. CHOICE 57 (2019) ....... 22

Daniel E. Walters & Elliott Ash, If We Build

It, Will They Legislate? Empirically

Testing the Potential of the

Nondelegation Doctrine to Curb

Congressional “Abdication,” 108

CORNELL L. REV. 401 (2023).......................... 9, 13

Daniel T. Deacon & Leah M. Litman, The

New Major Questions Doctrine, 109 VA.

L. REV. 1009 (2023) ............................................. 7

David Schoenbrod, The Delegation Doctrine:

Could the Court Give It Substance?, 83

MICH. L. REV. 1223 (1985) ................................... 7

Elena Kagan, Presidential Administration,

114 HARV. L. REV. 2245 (2001)............................ 5

Eric Berger, Constitutional Conceits in

Statutory Interpretation, 75 ADMIN. L.

REV. 479 (2023) .................................................. 14

IX

TABLE OF AUTHORITIES

(continued)

Page(s)

Evan C. Zoldan, The Major Questions

Doctrine in the States, 101 WASH. U. L.

Rev. 359 (2023) .................................................. 13

Evan J. Criddle, When Delegation Begets

Domination: Due Process of

Administrative Lawmaking, 46 GA. L.

REV. 117 (2011).................................................... 2

Gary Lawson, Delegation and Original

Meaning, 88 VA. L. REV. 327 (2002)................ 5, 8

Harvey S. James Jr., Estimating OSHA

Compliance Costs, 31 POL’Y SCIS. 297

(1998) ................................................................. 21

Ilan Wurman, Nondelegation at the

Founding, 130 YALE L.J. 1490 (2021)................. 5

Jason Iuliano & Keith E. Whittington, The

Nondelegation Doctrine: Alive and Well,

93 NOTRE DAME L. REV. 619 (2017) .................. 13

Jason Webb Yackee & Susan Webb Yackee,

Delay in Notice and Comment

Rulemaking: Evidence of Systemic

Regulatory Breakdown?, in REGULATORY

BREAKDOWN: THE CRISIS OF CONFIDENCE

IN U.S. REGULATION 163 (2012) ........................ 11

John M. Manning, The Nondelegation

Doctrine As A Canon of Avoidance, 2000

SUP. CT. REV. 223 (2000) ................................... 17

X

TABLE OF AUTHORITIES

(continued)

Page(s)

Jonathan H. Adler & Christopher J. Walker,

Delegation & Time, 105 IOWA L. REV.

1931 (2020) ........................................................ 17

Jonathan H. Adler, The Ducks Stop Here?

The Environmental Challenge to

Federalism, 9 SUP. CT. ECON. REV. 205

(2001) ................................................................. 15

Joseph Postell & Randolph J. May, The

Myth of the State Nondelegation

Doctrines, 74 ADMIN. L. REV. 263 (2022) .......... 14

Kathryn A. Watts, Rulemaking As

Legislating, 103 GEO. L.J. 1003 (2015) ............... 8

Laurence H. Tribe, Intergovernmental

Immunities in Litigation, Taxation, and

Regulation: Separation of Powers Issues

in Controversies About Federalism, 89

HARV. L. REV. 682 (1976) .................................. 15

MICHAEL ASIMOW & RONALD M. LEVIN,

STATE AND FEDERAL ADMINISTRATIVE

LAW 450 (4th ed. 2014)...................................... 13

Michele E. Gilman, Presidents, Preemption,

and the States, 26 CONST. COMMENT. 339

(2010) ................................................................. 15

Mila Sohoni, The Major Questions Quartet,

136 HARV. L. REV. 262 (2022)............................ 18

XI

TABLE OF AUTHORITIES

(continued)

Page(s)

Neomi Rao, Administrative Collusion: How

Delegation Diminishes the Collective

Congress, 90 N.Y.U. L. REV. 1463 (2015) ......... 16

Philip Hamburger, Nondelegation Blues, 91

GEO. WASH. L. REV. 1083 (2023) ......................... 7

Richard A. Epstein, Delegation of Powers: A

Historical and Functional Analysis, 24

CHAP. L. REV. 659 (2021) ..................................... 5

Ronald Cass, Delegation Reconsidered: A

Delegation Doctrine for the Modern

Administrative State, 40 HARV. J.L. &

PUB. POL’Y 147 (2017) ....................................... 17

Samuel Dodge, Whitmer bill signings

include tightened sex offender

registration protocols, boosts in medical

staffing, MLIVE (Dec. 30, 2020, 11:09

a.m.) ................................................................... 13

Scott A. Keller, How Courts Can Protect

State Autonomy from Federal

Administrative Encroachment, 82 S. CAL.

L. REV. 45 (2008) ............................................... 14

Sean P. Sullivan, Powers, But How Much

Power? Game Theory and the

Nondelegation Principle, 104 VA. L. REV.

1229 (2018) .......................................................... 6

XII

TABLE OF AUTHORITIES

(continued)

Page(s)

State Occupational Safety & Health

Surveillance Program, U.S. DEP’T OF

HEALTH & HUM. SERVS.,

http://tinyurl.com/3hn93bex. ............................ 23

STATE PLANS, U.S. DEP’T OF LABOR,

http://tinyurl.com/25ucrc58............................... 23

Steven G. Calabresi, Separation of Powers

and the Rehnquist Court: The Centrality

of Clinton v. City of New York, 99 NW. U.

L. REV. 77 (2004) ................................................. 8

Thomas B. Griffith & Haley N. Proctor,

Deference, Delegation, and Divination:

Justice Breyer and the Future of the

Major Questions Doctrine, 132 YALE L.J.

FORUM 693 (2022)................................................ 8

U.S. GOV’T ACCOUNTABILITY OFF., GAOI-12330, WORKPLACE SAFETY AND HEALTH:

MULTIPLE CHALLENGES LENGTHEN

OSHA’s STANDARD SETTING (2012) ................... 11

INTRODUCTION AND INTERESTS

OF AMICI CURIAE*

Name a high school civics course that fails to recite

that the Constitution separates powers because the

“accumulation of all powers, legislative, executive, and

judiciary, in the same hands” is a tyranny. THE

FEDERALIST NO. 47 (J. Madison). Most go to the next

step, too, explaining that this abstract ideal needs

concrete checks to do any good—structural tools so

that one branch’s ambition will “counteract” another’s,

THE FEDERALIST NO. 51 (J. Madison). Yet one might

wager too few classes explain how our system deals

with a scenario that would have made many a

Founder scratch their head: a branch’s willing choice

to cede its own power away. When that happens, it

shouldn’t take an A+ student to recognize that the

watchdog judiciary must step up.

Originally, the Court did just that with the

nondelegation doctrine.

The Court knows that

keeping legislative power out of the executive’s hands

is “universally recognized as vital to the integrity and

maintenance of the system of government ordained by

the constitution.” Marshall Field & Co. v. Clark, 143

U.S. 649, 692 (1892). So it put separation-of-powers

principles into action through the nondelegation

doctrine: Congress “can[not] delegate to the Courts, or

to any other tribunals” (or to anyone else, really),

“powers which are strictly and exclusively legislative.”

Wayman v. Southard, 23 U.S. 1, 42 (1825); accord

Under Supreme Court Rule 37.2(a), amici timely notified

counsel of record of their intent to file this brief.

*

2

Gundy v. United States, 139 S. Ct. 2116, 2123 (2019)

(plurality op.).

But some early good years for the doctrine have

given way to now nine decades of courts “avert[ing]

[their] eyes while Congress has enacted a host of

expansive delegations with only minimal policy

guidance.” Evan J. Criddle, When Delegation Begets

Domination: Due Process of Administrative

Lawmaking, 46 GA. L. REV. 117, 143-44 (2011). And

the costs keep worsening as the daylight grows

between government on constitutional parchment and

government in the real world.

The amici States and legislature have sounded this

alarm before. See, e.g., Br. of Amici Curiae State of

West Virginia et al., Consumers’ Res. v. FCC, No. 23743 (U.S. Feb. 8, 2024); Br. of Amici Curiae State of

West Virginia et al., Altagracia Sanchez v. Off. of the

State Super. of Educ., No. 22-543 (U.S. Jan. 4, 2023).

Congress’s near-hands off approach to limiting the

Occupational Safety and Health Administration’s

power in this case makes us do so again. Though amici

share Congress’s strong interest in protecting

employees from workplace hazards, we cannot support

its incredible delegation in the Occupation Safety and

Health Act. That Act says that the Secretary of Labor

can choose permanent safety standards for all

industries and for almost every business in the United

States. Nothing meaningfully limits that discretion—

so long as the standard is reasonably necessary or

appropriate in the Secretary’s view, Congress says

“go.” And the compliance costs for these oversight-less

mandates cost the businesses in our States well into

hundreds of millions of dollars each year. Pet.7-8.

3

Congress at least needs to provide meaningful

guidelines and limits before setting OSHA loose in

every aspect of our economies. After all, “no matter

how laudable its purposes, the actions of our

government are always subject to the limitations of

the Constitution.” Barr v. DOJ, 819 F.2d 25, 25 (2d

Cir. 1987). This Court has not hesitated in holding

Congress to those limits when it tries to shrink the

other branches’ powers: It has stopped Congress from

“confer[ring] the Government’s ‘judicial power’ on

entities outside Article III,” for instance, Stern v.

Marshall, 564 U.S. 462, 484 (2011), and policed

legislative efforts to control executive branch officials,

Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2207 (2020).

It should do the same when Congress gives up its own

authority. The Court should grant the Petition and

reverse the decision below.

SUMMARY OF ARGUMENT

I. The nondelegation doctrine is vital to our

constitutional system. But over time, courts have

allowed Congress to slough off its legislative mandate

in the name of (supposed) regulatory efficiency.

Minimizing the nondelegation doctrine in this way has

left lower courts confused and transformed agencies

into junior-varsity Congresses. The separation of

powers is too important to wait on bringing the

nondelegation doctrine back into circulation.

II. Lurking under anemic delegation limits is the

myth that the nondelegation doctrine cannot meet

modern legislative needs: Congress may not act fast

enough to respond to problems, or perhaps it lacks

agencies’ expertise in filling regulatory gaps. As a

legal matter, the Constitution already weighed the

4

tradeoffs when prescribing the federal government’s

mutually self-limited frame. As a factual matter,

these fears rest on little empirical (or any other) data.

And on the other side of the scale, the nondelegation

doctrine protects the States’ interests because the

separation of powers guards federalism. States have

more ability to make their voices heard when laws are

written in the U.S. Code instead of the Code of Federal

Regulations. A nondelegation doctrine with teeth also

keeps Congress’s incentives and accountability better

focused on the States and on our residents’ needs.

III. This case is strong to address these issues.

OSHA’s delegation here is one of the broadest

Congress has enacted; it should fall under even the

existing test. So taking up this case would give the

Court options whether to take on some or all of the

nondelegation challenge, and how to tackle it. And

given OSHA’s other rulemaking powers and the

States’ tools and incentives to protect workers, the

Court can address the issue without putting America’s

workforce at risk. It should do so.

REASONS FOR GRANTING THE PETITION

I.

The Nondelegation Doctrine Is In Crisis.

A. The nondelegation doctrine “ensures democratic

accountability by preventing Congress from

intentionally delegating its legislative powers to

unelected officials.” NFIB v. OSHA, 595 U.S. 109, 124

(2022) (Gorsuch, J., concurring). While agencies are a

reality of modern life and may fill in statutory gaps

with “judgments of degree,” Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 475 (2001) (cleaned up),

Congress must make “fundamental policy decisions”

5

itself—“the hard choices.” Indus. Union Dep’t, AFLCIO v. Am. Petroleum Inst., 448 U.S. 607, 687 (1980)

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

nondelegation doctrine, then, demands that Congress

provide “sufficiently definite and precise” guidance to

know whether the agency is or is not staying within

its lane. Yakus v. United States, 321 U.S. 414, 426

(1944).

For a long while, the doctrine was rarely called up.

Early “regulatory statutes … contain[ed] detailed and

limited grants of authority to administrative bodies.”

Elena Kagan, Presidential Administration, 114 HARV.

L. REV. 2245, 2255 (2001). “Before the 1930s,” in fact,

“federal statutes granting authority to the executive

were comparatively modest and usually easily

upheld.” Gundy, 139 S. Ct. at 2137 (Gorsuch, J.,

dissenting). In short, they tracked the originalist

understanding that had contemplated a true divide

between legislating and executing—an understanding

on all fours with a full-throated nondelegation

doctrine.

See generally, e.g., Aaron Gordon,

Nondelegation Misinformation: A Reply to the

Skeptics, 75 BAYLOR L. REV. 152 (2023); Richard A.

Epstein, Delegation of Powers: A Historical and

Functional Analysis, 24 CHAP. L. REV. 659, 663 (2021);

Ilan Wurman, Nondelegation at the Founding, 130

YALE L.J. 1490 (2021).

But as Petitioner explains, see Pet.28, that changed

as the Court traded the originalist view for the

intelligible principle approach to delegation. See, e.g.,

Gary Lawson, Delegation and Original Meaning, 88

VA. L. REV. 327, 371 (2002). In its earlier version, the

new theory said that a congressional act does not

violate the separation of powers if Congress

6

articulates “an intelligible principle” to which the

agency is directed to conform. J.W. Hampton, Jr., &

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

standard to be sure, but not one doomed from the getgo. It left room for the ideas that while “some

judgments … must be left to the officers executing the

law,” Mistretta v. United States, 488 U.S. 361, 415

(1989) (Scalia, J., dissenting), Congress cannot ask the

executive to set “the criteria against which to

measure” its own decisions, Gundy, 139 S. Ct. at 2141

(Gorsuch, J., dissenting).

And at first, these

constitutional first principles gave the intelligible

principle doctrine some heft.

When the Court

confronted overly broad legislative decisions in 1935,

it rebuffed them—standing against “delegation

running riot.” A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 551 (1935); id. at 553

(Cardozo, J., concurring); Panama Refin. Co. v. Ryan,

293 U.S. 388, 432-33 (1935).

Things unraveled fast. The standard has now

“mutated” into something with no footing “in the

original meaning of the Constitution, in history, or

even in” J.W. Hampton itself. Gundy, 139 S. Ct. at

2139-41 (Gorsuch, J., dissenting). It has no bite left,

either. Under it, “sweeping grants of what appear[ed]

to be embarrassingly legislative powers [were]

consistently upheld.” Sean P. Sullivan, Powers, But

How Much Power? Game Theory and the

Nondelegation Principle, 104 VA. L. REV. 1229, 123132 (2018). Now effectively any standard will do, based

on the belief that “in our increasingly complex society,”

“Congress simply cannot do its job absent an ability to

delegate power under broad general directives.”

Mistretta, 488 U.S. at 372 (Scalia, J., dissenting). So,

for instance, this Court “found that [statutes] merely

7

directing agencies to regulate in the public interest or

to adopt standards requisite to protect the public

health suffice.” Daniel T. Deacon & Leah M. Litman,

The New Major Questions Doctrine, 109 VA. L. REV.

1009, 1018 (2023) (citing Whitman, 531 U.S. at 47376). And agencies have run with this “notoriously lax”

test. Amy Coney Barrett, Suspension and Delegation,

99 CORNELL L. REV. 251, 318 (2014). Constitutional

order may be under threat, but the administrative

state is flourishing—thanks in large part to the

intelligible principle doctrine, “hundreds of federal

agencies pok[e] into every nook and cranny of daily

life,” City of Arlington v. FCC, 569 U.S. 290, 315 (2013)

(Roberts, C.J., dissenting).

B. Set aside (momentarily; see infra Part II.B.) the

harms that have come with the nondelegation

doctrine’s “one good year, and 211 bad ones (and

counting).” Cass R. Sunstein, Nondelegation Canons,

67 U. CHI. L. REV. 315, 322 (2000). The most direct

call for the Court to intervene is that the evolving

“intelligible principle” doctrine has left many

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

575 U.S. 43, 76-86 (2015) (Thomas, J., concurring in

the judgment) (tracing the doctrine’s long decline).

Forty years ago, scholars called it “so ephemeral and

elastic as to lose its meaning.” David Schoenbrod, The

Delegation Doctrine: Could the Court Give It

Substance?, 83 MICH. L. REV. 1223, 1231 (1985). Little

has changed since: scholars still attack the current

test’s “untruth,” “laxity,” and “fictional” nature,

raising the question why we go through the farce of

applying it at all. Philip Hamburger, Nondelegation

Blues, 91 GEO. WASH. L. REV. 1083, 1091-92 (2023).

Where courts have “found intelligible principles,” for

instance, others have decried only “gibberish.”

8

Lawson, supra, at 329. In fact, even those who oppose

the doctrine know that its “continual appearance in

the case law has confused administrative law as a

whole.”

Kathryn A. Watts, Rulemaking As

Legislating, 103 GEO. L.J. 1003, 1007 (2015).

Intensifying the uncertainty, several members of

the Court openly question at least some aspects of the

present doctrine. See Gundy, 139 S. Ct. at 2131 (Alito,

J., concurring in the judgment); id. (Gorsuch, J., with

Roberts, C.J., and Thomas, J., dissenting); Paul v.

United States, 140 S. Ct. 342 (2019) (Kavanaugh, J.,

respecting the denial of certiorari); United States v.

Nichols, 784 F.3d 666, 671 (10th Cir. 2015) (Gorsuch,

J., dissental). The Court also may—or may not—be

creeping back toward using the nondelegation

doctrine without saying so directly. At least one

scholar described the Court’s decision in Clinton v.

City of New York, 524 U.S. 417 (1998), as a “nondelegation doctrine case masquerading as a

bicameralism and presentment case.” Steven G.

Calabresi, Separation of Powers and the Rehnquist

Court: The Centrality of Clinton v. City of New York,

99 NW. U. L. REV. 77, 85 (2004).

And other

commenters have called out where related-yet-distinct

doctrines may be “narrow[ing] the field in which the

nondelegation doctrine remains underenforced.” See,

e.g., Thomas B. Griffith & Haley N. Proctor,

Deference, Delegation, and Divination: Justice Breyer

and the Future of the Major Questions Doctrine, 132

YALE L.J. FORUM 693, 703 (2022) (discussing the major

questions doctrine).

All of this leaves the lower courts adrift. Faced

with a feeble modern doctrine, some judges lament

that it means nothing as courts “conjure[] standards

9

and limits from thin air to construct a supposed

intelligible principle.” Mich. Gambling Opposition v.

Kempthorne, 525 F.3d 23, 34 (D.C. Cir. 2008) (Brown,

J., dissenting).

Others have questioned the

nondelegation doctrine’s vitality overall. See Bradford

v. U.S. Dep’t of Lab., 582 F. Supp. 3d 819, 846 n.8 (D.

Colo. 2022). Should both these camps of judges

instead be taking the message that a “set of seemingly

disparate cases” from the Court’s more recent Terms

“actually

constitute

…

the

contemporary

nondelegation doctrine?”

Nondelegation Canons,

supra, at 316-17. Still other judges, after all, have

been finding room to adopt, at least in bits, the historybased ideas in Justice Gorsuch’s Gundy dissent. See,

e.g., Jarkesy v. SEC, 34 F.4th 446, 460 (5th Cir. 2022),

cert. granted 143 S. Ct. 2688 (2023); United States v.

Melgar-Diaz, 2 F.4th 1263, 1266-68 (9th Cir. 2021);

Granados v. Garland, 17 F.4th 475, 480 (4th Cir.

2021).

Optimistically for amici and others who take the

nondelegation doctrine seriously, these “[r]ecent

events have upended any assumption that [it] will

continue to go unenforced in the federal courts.”

Daniel E. Walters & Elliott Ash, If We Build It, Will

They Legislate? Empirically Testing the Potential of

the Nondelegation Doctrine to Curb Congressional

“Abdication,” 108 CORNELL L. REV. 401, 408 (2023).

But what does renewed enforcement mean? At best,

“[t]he only certainty about the federal nondelegation

doctrine is that it is sure to change.” Benjamin Silver,

Nondelegation in the States, 75 VAND. L. REV. 1211,

1271 (2022). At worst, what should be a libertypreserving safeguard will remain on life support until

this Court intervenes. And no one will know what to

do with it in the meantime.

10

II.

The States Need A Strong Nondelegation

Doctrine—And Modern Regulation Can Survive

It.

With the nondelegation doctrine in a compromised

state, the Court should grant this Petition to give it

back energy and clear meaning.

“[C]lassifying

governmental power” is no doubt an “elusive venture,”

“[b]ut it is no less important for its difficulty.” Dep’t of

Transp., 575 U.S. at 76 (Thomas, J., concurring in the

judgment). The Constitution requires “call[ing] foul”

when necessary, after all. Gundy, 139 S. Ct. at 2135

(Gorsuch, J., dissenting). So the Court should not “shy

away from tackling the difficult questions and

enforcing the Constitution’s checks on delegation.”

Cody Ray Milner, Into the Multiverse: Replacing the

Intelligible Principle Standard with A Modern MultiTheory of Nondelegation, 28 GEO. MASON L. REV. 395,

448 (2020).

Particularly not from this difficult

question, as Madison called protecting the separation

of powers “the great problem to be solved.” THE

FEDERALIST NO. 48 (J. Madison). Here, the costs for

the States and our residents are too great to hold back.

And to the extent they matter, worries that stepping

in will stymie instead of protect American governance

are overblown.

A. Starting first with the expected naysaying:

Modern legislation will be fine with a more than inname-only nondelegation doctrine. Practical worries

should not be enough to upset the Constitution’s

structure, particularly when they turn on critiques

inherent to deliberative lawmaking—a feature of our

Republic and not a bug. Gundy, 139 S. Ct. at 2134

(Gorsuch, J., dissenting) (explaining that the

Founders “went to great lengths to make lawmaking

11

difficult”). Regardless, evidence doesn’t support the

idea that a robust separation of powers must give way

to modern governance’s realities.

For one thing, legislating by notice-and-comment

rulemaking is not faster than legislating the oldfashioned way. Congress can act quickly when it

wants to. President Bush signed the PATRIOT Act

just three days after it was introduced. See Pub. L.

No. 107-56, 115 Stat. 272 (2001). Congress moved fast

during the coronavirus pandemic, too. See Tiger Lily,

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

674 (6th Cir. 2021) (Thapar, J., concurring). Nor do

agencies have the upper hand outside emergency

situations: Agency rules take on average about 18

months. See Jason Webb Yackee & Susan Webb

Yackee, Delay in Notice and Comment Rulemaking:

Evidence of Systemic Regulatory Breakdown?, in

REGULATORY BREAKDOWN: THE CRISIS OF CONFIDENCE

IN U.S. REGULATION 163, 168 (2012).

For OSHA

specifically, a study of 58 significant health and safety

standards over 30 years saw that average balloon to

93 months—almost two presidential terms. See U.S.

GOV’T

ACCOUNTABILITY

OFF.,

GAOI-12-330,

WORKPLACE SAFETY AND HEALTH: MULTIPLE

CHALLENGES LENGTHEN OSHA’S STANDARD SETTING 8

(2012), http://tinyurl.com/2dsvbxan.

Next, some say that Congress lacks agencies’

assumed expertise, so revitalizing the nondelegation

doctrine will hurt lawmaking. But even taking agency

expertise as a (sometimes dubious) given, any benefits

from “expert” bodies, insulated from the political

process, cannot outweigh the Constitution.

See

Mistretta, 488 U.S. at 422 (Scalia, J., dissenting). Too

much faith in “administrative expertise stands at odds

12

with” originalist understandings of “democracy itself.”

D.A. Candeub, Tyranny and Administrative Law, 59

ARIZ. L. REV. 49, 88 (2017). The premise that Congress

cannot harness enough subject-matter expertise to

legislate is wrong, as well. Congress has its own

experts to help ensure that laws are technically sound.

Fact-gathering and investigation are the very reasons

committees and subcommittees exist. Congress, too,

can elicit testimony from others or commission reports

from the executive branch, agencies like OSHA

included. And these agencies could use their expertise

to suggest laws for Congress to pass rather than

enacting laws outside bicameralism-and-presentment

limits as they currently do.

A more robust nondelegation doctrine also need not

disrupt appropriate efficiency gains through

delegation.

Congress can keep any existing

regulations it likes by adding them to the U.S. Code.

It already does. See Whitman, 531 U.S. at 472 (noting

“a subsequent Congress had incorporated the

regulations into a revised version of the statute”). And

going forward, it need not draft every fine detail into

law. A more robust nondelegation doctrine would

require Congress to meaningfully legislate—the kind

of work it has shown itself more than equipped to do.

See Cass R. Sunstein, Is the Clean Air Act

Unconstitutional?, 98 MICH. L. REV. 303, 356 (1999)

(predicting that “[t]here should not be many” “extreme

cases” requiring the Court to strike down “open-ended

grants of authority,” even under a more rigorous

conception of the doctrine). As long as Congress

makes the judgments critical to legislating and gives

genuine guidance for agencies to fill in the gaps,

agencies can still use lawful delegation to execute the

law.

13

Our experience on the state level also gives

confidence here. In many ways the “nondelegation

doctrine has much greater practical significance” for

the States than it does “at the federal level.” MICHAEL

ASIMOW & RONALD M. LEVIN, STATE AND FEDERAL

ADMINISTRATIVE LAW 450 (4th ed. 2014). And many

state courts have rebuffed the intelligible principle

approach in favor of truer versions of the

nondelegation doctrine—as of seven years ago statecourt litigants had found success in nondelegation

challenges at least 150 times. See Jason Iuliano &

Keith E. Whittington, The Nondelegation Doctrine:

Alive and Well, 93 NOTRE DAME L. REV. 619, 636

(2017).

To be sure, these judicial moves change “legislative

behavior and curb[] delegation.” Walters & Ash,

supra, at 415 (finding “some evidence” of these realworld changes when state courts enforce the

nondelegation doctrine). But not in a negative way.

Michigan’s legislature, for instance, stepped up when

the Michigan Supreme Court reinvigorated its statelaw-based nondelegation doctrine and invalidated

certain executive orders. See Samuel Dodge, Whitmer

bill signings include tightened sex offender

registration protocols, boosts in medical staffing,

MLIVE

(Dec.

30,

2020,

11:09

a.m.),

https://bit.ly/3WXARXC. Life moved on in Michigan

even though the state court “reached a result far out

of step with federal law.” Evan C. Zoldan, The Major

Questions Doctrine in the States, 101 WASH. U. L. REV.

359, 394 (2023). Indeed, “even the vast majority of [socalled] weak nondelegation state courts invalidate

statutes from time to time on nondelegation grounds,”

yet no one has sounded the alarm in those States,

either. Id. at 393. Real-world experience thus

14

confirms that the federal approach to nondelegation is

the odd man out—and that a meaningful shift “would

not lead to apocalyptic results.” Joseph Postell &

Randolph J. May, The Myth of the State

Nondelegation Doctrines, 74 ADMIN. L. REV. 263, 305

(2022).

B. In contrast, a real nondelegation doctrine really

matters to the States because it keeps their voice

heard in the matters that affect them and their

residents.

Federalism walks hand-in-hand with the

separation of powers as two of the “most important”

“structural protections” in our constitutional system.

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519,

707 (2012) (Scalia, Kennedy, Thomas, & Alito, JJ.,

dissenting). Separating powers on the federal level

preserves the “integrity, dignity, and residual

sovereignty of the States.” Bond v. United States, 564

U.S. 211, 221 (2011). Indeed, the “structure of the

Federal Government” is the Constitution’s “principal

means” “to ensure the role of the States.” Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 550

(1985). So letting the federal government ignore these

structural “constraints” comes “at the expense of state

authority.” Bradford R. Clark, Separation of Powers

As A Safeguard of Federalism, 79 TEX. L. REV. 1321,

1324 (2001).

We’ve seen that happen in the nondelegation

context—an illusory doctrine helps explain the rise in

the “hard questions” about federalism that infuses

modern administrative-law cases. Scott A. Keller,

How Courts Can Protect State Autonomy from

Federal Administrative Encroachment, 82 S. CAL. L.

REV. 45, 53 (2008); see also Eric Berger, Constitutional

15

Conceits in Statutory Interpretation, 75 ADMIN. L.

REV. 479, 505-08 (2023) (showing how nondelegation

and federalism concepts jointly underlie several of the

Court’s recent administrative-law decisions). Little

surprise there: Congress can be better “relied upon to

respect the States.” Calvin R. Massey, The Tao of

Federalism, 20 HARV. J.L. & PUB. POL’Y 887, 891

(1997). So letting Congress give up too much statutory

document control leads to a worse deal for the States.

Part of the reason is that “[m]embers of Congress

are more responsive to the concerns of [their] local”

constituencies than “centralized regulatory agencies.”

Jonathan H. Adler, The Ducks Stop Here? The

Environmental Challenge to Federalism, 9 SUP. CT.

ECON. REV. 205, 221 (2001). State-focused “political

checks and Congress’ political accountability”—like

state political party pressure and lobbying efforts—

help, too. D. Bruce La Pierre, Political Accountability

in the National Political Process—the Alternative to

Judicial Review of Federalism Issues, 80 NW. U. L.

REV. 577, 633 (1985). Congress also has “peculiar

institutional competence” in “adjusting … power

relationships,” including those between the States and

the federal government.

Laurence H. Tribe,

Intergovernmental

Immunities

in

Litigation,

Taxation, and Regulation: Separation of Powers

Issues in Controversies About Federalism, 89 HARV.

L. REV. 682, 696 (1976).

Even more practically, the legislative process has

“more opportunities and more access points to provide

input to Congress” than rulemaking does to the

President and executive agencies. Michele E. Gilman,

Presidents, Preemption, and the States, 26 CONST.

COMMENT. 339, 365 (2010). The “‘political safeguards’

16

that give states a voice” in lawmaking simply do not

extend to a “voice in the executive branch’s activities.”

Charles Davant IV, Sorcerer or Sorcerer’s

Apprentice?: Federal Agencies and the Creation of

Individual Rights, 2003 WIS. L. REV. 613, 640 (2003).

Again, that idea matters more than as an abstraction:

OSHA provides “a kind of boilerplate” statement when

it issues regulations, Cass R. Sunstein, Is OSHA

Unconstitutional?, 94 VA. L. REV. 1407, 1425 (2008),

but it doesn’t explain how it weighs the costs and

benefits. And while amici often argue the harms from

excess regulation, here some insist OSHA rules are on

the lower end of cost-per-life-saved, which potentially

“suggests” “further opportunities for life-saving”

measures. Id. at 1443. The States’ lack of input

combined with OSHA’s missing congressional

direction thus makes it hard to tell if OSHA is doing

too much or too little. The nondelegation doctrine, by

contrast, helps ensure that the on-ramps for

meaningful state input remain open for all legislation.

The gains from all these structural protections get

diluted if Congress can delegate at the broadest

conceptual level. It’s human nature to work more

carefully when others are watching, after all. The

nondelegation doctrine helps protect liberty by

keeping lawmaking power “with the people’s elected

representatives” and away from unaccountable agency

officials, NFIB, 595 U.S. at 124 (Gorsuch, J.,

concurring)—while a weakened doctrine both

“expand[s] the power of executive agencies” and

“unravel[s] the institutional interests of Congress,”

Neomi

Rao,

Administrative Collusion: How

Delegation Diminishes the Collective Congress, 90

N.Y.U. L. REV. 1463, 1465 (2015). At the same time,

half-loaf approaches to nondelegation—such as

17

enforcing it through a canon of constitutional

avoidance—can

undermine

accountability

by

upsetting “the fruits of legislative compromise.” John

M. Manning, The Nondelegation Doctrine As A Canon

of Avoidance, 2000 SUP. CT. REV. 223, 228 (2000).

Keeping lawmaking power in Congress is also

important because lawmakers (like the rest of us)

sometimes avoid tough decisions.

Ronald Cass,

Delegation Reconsidered: A Delegation Doctrine for

the Modern Administrative State, 40 HARV. J.L. &

PUB. POL’Y 147, 154 (2017); see also Jonathan H. Adler

& Christopher J. Walker, Delegation & Time, 105

IOWA L. REV. 1931, 1937 (2020) (pointing to “the fall of

lawmaking by legislation”). That’s what Justice

Rehnquist thought was happening when Congress

passed OSHA’s governing statute: He found it

“difficult to imagine a more obvious example of

Congress simply avoiding a choice which was both

fundamental for purposes of the statute and yet

politically so divisive that the necessary decision or

compromise was difficult . . . to hammer out in the

legislative forge.” Am. Petroleum Inst., 448 U.S. at

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

Worse, not enforcing nondelegation lets Congress

both take unfair “credit for addressing a pressing

social problem” it functionally offloaded to the

executive, and then “blam[e] the executive” for

whatever headaches that follow. Gundy, 139 S. Ct. at

2135 (Gorsuch, J., dissenting). Legislators have

admitted that happens. One confessed, for example,

that “[w]hen hard decisions have to be made,

[Congress] pass[es] the buck to the agencies with

vaguely worded statutes.” 122 CONG. REC. 31,628

(1976). Again, no wonder here. When “reasonableness

18

is enough to make a delegation proper,” courts “allow[]

the legislature to pass off responsibility for legislating,

thereby endangering the liberties of the people.” In re

Certified Questions From United States Dist. Ct., W.

Dist. of Mich., S. Div., 958 N.W.2d 1, 47 (Mich. 2020).

A meaningful nondelegation doctrine ensures

Congress can’t shirk—decisionmakers reap the

benefits and bear the blame.

All of this is why the amici have long been beating

this drum in all the administrative-law contexts that

matter. We have urged the Court to keep agencies

within the lines Congress does draw and to protect

meaningful judicial review for agency rulemaking.

See, e.g., Br. of Amici Curiae State of West Virginia et

al., Corner Post, Inc. v. Bd. of Governors of the Fed.

Res. Sys., No. 22-1008 (U.S. Nov. 20, 2023) (statute of

limitations for challenges to agency rules); Br. of Amici

Curiae State of West Virginia et al., Loper Bright

Enters. v. Raimondo, No. 22-451 (U.S. July 24, 2023)

(Chevron deference); Br. for Pet’r’s, State of West

Virginia et al. v. EPA, 597 U.S. 697 (2022) (No. 201530) (limits on agency rulemaking for major

questions in areas of traditional state sovereignty).

The nondelegation doctrine matters in those areas,

too—in major-questions analysis, for instance,

“without knowing what [the] nondelegation theory is,

it becomes much harder to accurately apply a rule that

ostensibly exists ‘in service of’ that underlying

doctrine” (at least to some). Mila Sohoni, The Major

Questions Quartet, 136 HARV. L. REV. 262, 300 (2022)

(quoting Gundy, 139 S. Ct. at 2142 (Gorsuch, J.,

dissenting)).

More to the point, lower courts’ continued decisions

upholding broad delegations show how agency

19

accountability only gets so far without holding

Congress to task, as well. When Congress tells an

agency—clearly—to go forth and regulate without

guardrails, it’s not the agency’s fault when it does just

that. But while Congress may sometimes be satisfied

with that state of play, the States—and the

Constitution, and the People whose liberty it

protects—are not. The Court should intervene.

III.

This Case Is A Good Vehicle.

This case is an excellent opportunity to revive the

nondelegation doctrine.

OSHA’s governing Act stands nearly alone in its

delegatory breadth: “No other federal regulatory

statute confers so much discretion on federal

administrators, at least in any area with such broad

scope.” Is OSHA Unconstitutional?, supra, at 1448.

The Secretary of Labor “may by rule promulgate,

modify, or revoke any occupational safety or health

standard” as part of Congress’s directive to address

the conditions of “every working man and woman in

the Nation.” 29 U.S.C. §§ 655(b), 651(b). That power

“is not contingent on a fact-finding inquiry.”

Pet.App.43a.

Instead—when it comes to the

permanent safety standards at issue here—the only

thing binding the Secretary’s discretion is her

judgment that a standard is “reasonably necessary or

appropriate to provide safe or healthful employment

and places of employment.” 29 U.S.C. §§ 651(b)(3),

652(8). With a mandate like that, “it is not difficult to

distinguish” the Act “from statutes that the Court has

upheld” before. Is OSHA Unconstitutional?, supra, at

1448. In other words, this case offers the Court

options to revitalize the nondelegation doctrine by

20

giving it new weight or by just making clear existing

law still holds sway.

Start with reinvigorating the current test. OSHA’s

permanent-safety-setting authority flunks it; it

“authorizes the making of codes” of conduct instead of

“prescribe[es]” them. Schechter Poultry, 295 U.S. at

541. Under any ordinary understanding, “reasonably

necessary” and “appropriate” do not provide

intelligible limits when piled on in separate

disjunctives. “‘[N]ecessary” does not mean ‘absolutely

necessary,’” but what is convenient or useful. United

States v. Comstock, 560 U.S. 126, 134 (2010). And

Congress softened the agency’s duty further to only

what is “reasonably necessary.”

Is OSHA

Unconstitutional?, supra, at 1408. “Appropriate,” too,

is an “all-encompassing term that naturally and

traditionally includes consideration of all the relevant

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

But again, because Congress paired it with

“reasonably necessary,” the delegation may not

“require” OSHA to incorporate any specific factors in

its “rule of decision.” Is OSHA Unconstitutional?,

supra, at 1431.

Limits to open-ended language like this (“if any”

even exist) thus “depend[] on the statutory context.”

Pet.App.55a. But OSHA’s context is little help. The

permanent safety standards test comes from “a mere

definitional clause,” not any “substantive provision

instructing the Secretary what, exactly, [s]he is

supposed to consider in deciding what to do.” Is OSHA

Unconstitutional?, supra, at 1408.

To be sure, the past ninety years have shown the

intelligible principle test to be a tricky doctrine. Cf.

Mistretta, 488 U.S. at 415 (Scalia, J., dissenting)

21

(explaining the test’s elements are not “readily

enforceable by the courts”). But while the Court could

take up this case to scrap it for something closer to the

originalist view of acceptable delegation, it wouldn’t

have to. Darkening the line between “intelligible” and

ephemeral would itself go a long way.

Along similar lines, the Court could use this case to

tackle an important slice of the problem instead of all

of it at once: The test for particularly broad

delegations involving major policy questions. Pet.1114. Perhaps the Act’s expansive delegation could be

justified if it conferred only “temporary” power, for

instance, Yakus, 321 U.S. at 419, or reached only one

industry, N.Y. Cent. Sec. Corp. v. United States, 287

U.S. 12, 24-25 (1932) (railroad); Nat’l Broad. Co. v.

United States, 319 U.S. 190, 214 (radio); Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S. 381, 387

(1940) (coal). Instead, it gives the Secretary “broad

power over every industry that has a workplace

(probably all of them).” Pet.App.64a (emphasis in

original). The host of regulations that follow bring

compliance costs into the billions. See Harvey S.

James Jr., Estimating OSHA Compliance Costs, 31

POL’Y SCIS. 297, 321-41 (1998) (estimating compliance

with OSHA regulations in 1993 cost $33 billion).

Some judges have already reasoned that as

Congress’s delegations grow in scope, they “must be

correspondingly more precise.” Synar v. United

States, 626 F. Supp. 1374, 1386 (D.D.C. 1986) (threejudge panel). Delegations that “encompass[] all

American enterprise,” for example—like this one—

should require more rigorous standards than those

limited to “a single industry.” Int’l Union, United

Auto., Aerospace & Agr. Implement Workers of Am.,

22

UAW v. OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991).

So again, this case comes with options how best to

bring life into a nondelegation doctrine left too long to

wither on the vine.

Finally, this case is a strong candidate for review

because reversal would give meaningful relief to the

States and to our residents—and in an area where the

States could fill any gaps from paring back delegation.

Regulations are expensive and regulated entities pass

those costs onto consumers. On average, consumers

face nearly 1% price increases for every 10% increase

in overall federal regulation. D. Chambers, C.A.

Collins, A. Krause, How Do Federal Regulations Affect

Consumer Prices? Analysis of the Regressive Effects

of Regulation, 180 PUB. CHOICE 57, 59 (2019),

https://bit.ly/3rxlH0Q. OSHA’s regulations obviously

affect the bottom lines of the businesses in our States,

too. Here, for instance, a small business with four fulltime employees spends thousands of dollars annually

complying with myriad regulations that may not even

make their workplace safer. Pet.8-9.

Nor would granting review hurt the important goal

of workplace safety. As Petitioner emphasizes, the

case is about only one aspect of OSHA’s regulatory

authority. Pet.4, 23-24. So taking it up would bring

accountability to a particularly standardless

delegation, not erase OSHA’s mandate wholesale. The

States also have a vested interest in keeping workers

safe, and their existing tools to do so will stay

standing.

States retain their federal-financing

incentives to adopt workplace-safety plans “at least as

effective” as OSHA’s. 29 U.S.C. § 667(b), (c)(2).

Currently, “22 OSHA-approved State Plans” exist for

“both private sector and state and local government

23

workers,” as well as seven “covering only state and

local government workers.” State Plans, U.S. DEP’T OF

LABOR, http://tinyurl.com/25ucrc58 (last visited Feb.

27, 2024). The National Institute for Occupational

Safety and Health will still provide States financial

and technical support in integrating health and safety

strategies into targeted workplaces.

State

Occupational Safety & Health Surveillance Program,

U.S. DEP’T OF HEALTH & HUM. SERVS.,

http://tinyurl.com/3hn93bex (last visited Feb. 27,

2024). And States have their own workplace-safety

laws and regulations, as well as workers

compensation laws that can further sharpen the

incentives to make workplaces safe. See 6 David B.

Torrey & Andrew E. Greenberg, Secondary purpose:

The safety objective, in PENNSYLVANIA WORKERS’

COMPENSATION: LAW & PRACTICE § 1:24 (4th ed., Sept.

2022 update) (discussing studies showing workerscompensation-regimes’ effects in reducing the level of

fatalities in the workplace).

All told, delegation needs to be accountable. This is

a strong case for the Court to make it so again.

24

CONCLUSION

The Court should grant the Petition.

Respectfully submitted.

PATRICK MORRISEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

lindsay.s.see@wvago.gov

(304) 558-2021

LINDSAY S. SEE

Solicitor General

Counsel of Record

MICHAEL R. WILLIAMS

Principal Deputy

Solicitor General

SPENCER J. DAVENPORT

Assistant Solicitor

General

Counsel for Amicus Curiae State of West Virginia

25

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

TIM GRIFFIN

Attorney General

State of Arkansas

ASHLEY MOODY

Attorney General

State of Florida

CHRIS CARR

Attorney General

State of Georgia

RAÚL LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

KRIS KOBACH

Attorney General

State of Kansas

RUSSELL COLEMAN

Attorney General

Commonwealth of

Kentucky

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

ANDREW BAILEY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

GENTNER DRUMMOND

Attorney General

State of Oklahoma

26

ALAN WILSON

Attorney General

State of South Carolina

WARREN PETERSEN

President of the Senate

State of Arizona

MARTY JACKLEY

Attorney General

State of South Dakota

By counsel:

JONATHAN SKRMETTI

Attorney General and

Reporter

State of Tennessee

KEN PAXTON

Attorney General

State of Texas

SEAN D. REYES

Attorney General

State of Utah

JASON MIYARES

Attorney General

Commonwealth of

Virginia

Rusty D. Crandell

Majority General Counsel

Arizona State Senate

1700 W. Washington St.

Phoenix, Arizona 85007

rcrandell@azleg.gov

(602) 926-3137

BEN TOMA

Speaker of the House of

Representatives

State of Arizona

By counsel:

Linley Wilson

Majority General Counsel

Arizona House of

Representatives

1700 W. Washington St.

Phoenix, Arizona 85007

LWilson@azleg.gov

(602) 926-5418