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 THE NEW CIVIL LIBERTIES ALLIANCE

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

_________________________

Sheng Li

Counsel of Record

Andrew J. Morris

Mark S. Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th St. NW, Suite 450

Washington, DC 20036

(202) 869-5210

Sheng.Li@ncla.legal

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ............................................................... 4

I. CONGRESS MAY NOT DIVEST POWER THAT THE

CONSTITUTION VESTS IN IT ................................. 4

A. The Constitution Forbids All Legislative

Delegation ......................................................5

B. Transferring Legislative Powers

Undermines Self-Government.......................7

II. THE MODERN NONDELEGATION DOCTRINE

ENABLES CONSTITUTIONAL VIOLATIONS ........... 10

A. How It Started: The Nondelegation

Doctrine Developed to Enforce

Constitutional Boundaries .......................... 11

B. How It’s Going: The Nondelegation

Doctrine Now Endorses Divesting

Legislative Power......................................... 14

III. FALSITY, FICTION, AND OTHER FAULTS RIDDLE

THE NONDELEGATION DOCTRINE....................... 17

A. ‘Delegation’ Falsely Implies an Easily

Revocable Transfer ...................................... 17

B. The Nondelegation Doctrine Rests on

Fictions ......................................................... 18

C. Today’s Nondelegation Doctrine

Interferes with Article III ............................ 19

ii

IV. THIS CASE PRESENTS AN IDEAL VEHICLE TO

RESTORE THE VESTING CLAUSE ........................ 21

CONCLUSION .......................................................... 24

iii

TABLE OF AUTHORITIES

Page(s)

Cases

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

295 U.S. 495 (1935).............................. 11, 13, 14, 21

Am. Power & Light Co. v. SEC,

329 U.S. 90 (1946).................................................. 14

Bhatti v. Fed. Hous. Fin. Agency,

15 F.4th 848 (8th Cir. 2021) .................................. 16

CFPB v. Law Offs. of Crystal Moroney, P.C.,

63 F.4th 174 (2d Cir. 2023) ................................... 16

City of Arlington v. FCC,

569 U.S. 290 (2013)................................................ 10

Consumers’ Research v. FCC,

88 F.4th 917 (11th Cir. 2023) ................................ 16

Dep’t of Transp. v. Ass’n of Am. RRs,

575 U.S. 43 (2015)....................................................3

Granados v. Garland,

17 F.4th 475 (4th Cir. 2021) .................................. 16

Gundy v. United States,

139 S. Ct. 2116 (2019)............................ 3, 10, 18, 19

Indus. Union Dep’t, AFL-CIO v. Am. Petrol. Inst.,

448 U.S. 607 (1980)........................................ 2, 9, 22

Int’l Union v. OSHA,

938 F.2d 1310 (D.C. Cir. 1991) .............................. 23

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

276 U.S. 394 (1928)............................................ 6, 11

iv

Marshall Field & Co. v. Clark,

143 U.S. 649 (1892)................................................ 11

Michigan v. EPA,

576 U.S. 743 (2015)................................................ 23

Mistretta v. United States,

488 U.S. 361 (1989)................................................ 15

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

287 U.S. 12 (1932).................................................. 14

Opp Cotton Mills v. Adm’r of Wage and Hour Div.,

312 U.S. 126 (1941).................................... 11, 13, 20

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935).............................. 11, 12, 13, 21

Paul v. United States,

140 S. Ct. 342 (2019)................................................4

Tiger Lily, LLC v. HUD,

5 F.4th 666 (6th Cir. 2021) ............................ 8, 9, 10

United States v. Cooper,

750 F.3d 263 (3d Cir. 2014) ................................... 16

United States v. Diggins,

36 F.4th 302, (1st Cir. 2022) ................................. 16

United States v. Grimaud,

220 U.S. 506 (1911)................................................ 18

United States v. Rickett,

535 F. App’x 668 (10th Cir. 2013) ................... 15, 16

Wayman v. Southard,

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

Whitman v. Am. Trucking Ass’ns,

531 U.S. 457 (2001).................................. 3, 6, 10, 15

v

Yakus v. United States,

321 U.S. 414 (1944).............................. 11, 15, 20, 21

Constitutional Provisions

U.S. CONST. art. I, § 1.............................................. 4, 5

U.S. CONST. art. II, § 1 ................................................5

U.S. CONST. art. III, § 1 ...............................................5

Statutes

29 U.S.C. § 652(8) .................................................... 2, 3

29 U.S.C. § 655(b) .................................................... 2, 3

Other Authorities

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ............................................ 23, 24

Cass R. Sunstein,

Is OSHA Unconstitutional?,

94 VA. L. REV. 1407 (2008)................................. 4, 22

David Schoenbrod,

Consent of the Governed: A Constitutional Norm

that the Court Should Substantially Enforce,

43 HARV. J. L. & PUB. POL’Y 213 (2020)................. 18

David Schoenbrod,

Power Without Responsibility

(Yale U. Press 1993) ................................................9

Gary Lawson,

Delegation and Original Meaning,

88 VA. L. REV. 327 (2002) ...................................... 15

Mark Chenoweth & Richard Samp,

“Reinvigorating Nondelegation with Core

Legislative Power,” in The Administrative State

vi

Before the Supreme Court: Perspectives on the

Nondelegation Doctrine

(Peter J. Wallison & John Yoo eds., 2022)...... 19, 21

Philip Hamburger,

Nondelegation Blues,

91 GEO. WASH. L. REV. 1083 (2023)................... 6, 17

Resolutions of the Boston Town Meeting

(Sept. 13, 1768), in A Report of the Record

Commissioners of the City of Boston, Containing

the Boston Town Records, 1758 to 1769

(Boston: Rockwell & Churchill, 1886) .....................7

St. George Tucker,

Law Lectures, vol. 2, Tucker-Coleman Papers,

Mss. 39.1 T79, Box 62, Special Collections

Research Center, Earl Gregg Swem Library,

College of William and Mary ...................................6

THE FEDERALIST No. 62 (J. Madison)

(Clinton Rossiter ed., 1961) .....................................8

THE FEDERALIST No. 63 (J. Madison)

(Clinton Rossiter ed., 1961) .....................................8

1

INTEREST OF AMICUS CURIAE

The New Civil Liberties Alliance (“NCLA”) is a

nonpartisan, nonprofit civil rights organization and

public-interest law firm devoted to defending

constitutional freedoms from the administrative

state’s depredations. Professor Philip Hamburger

founded NCLA to challenge multiple constitutional

defects in the modern administrative state through

original litigation, amicus curiae briefs, and other

advocacy. 1

The “civil liberties” of the organization’s name

include rights at least as old as the U.S. Constitution

itself, such as jury trial, due process of law, and the

right to have laws made by the nation’s elected

lawmakers through constitutionally prescribed

channels (i.e., the right to self-government). These

selfsame civil rights are also very contemporary—and

in dire need of renewed vindication—precisely

because Congress, the President, federal agencies,

and even sometimes the Judiciary, have neglected

them for so long.

NCLA aims to defend civil liberties—primarily by

asserting

constitutional

constraints

on

the

administrative state. Although the American People

still enjoy the shell of their Republic, there has

developed within it a very different sort of

government—a type, in fact, that the Constitution

1 No counsel for any party to this case

authored this brief in

whole or part, and no party or counsel other than amicus curiae

and its counsel made a monetary contribution intended to fund

the preparation or submission of this brief. Counsel for amicus

curiae notified Petitioner and Respondent of NCLA’s intention to

file this brief on January 30, 2024.

2

was designed to prevent. This unconstitutional state

within is the focus of NCLA’s concern.

Section 6(b) of the Occupational Safety and Health

(“OSH”) Act of 1970 authorizes the Secretary of Labor

(“Secretary”) to “by rule promulgate, modify, or revoke

any occupational safety … standard.” 29 U.S.C.

§ 655(b). “The only substantive criteria given for …

permanent standards for safety hazards … are set

forth in § 3” of the OSH Act, Indus. Union Dep’t, AFLCIO v. Am. Petrol. Inst., 448 U.S. 607, 640 n.45 (1980)

(plurality), which defines a safety standard as “a

standard which requires conditions, or the adoption or

use of one or more practices … reasonably necessary

or appropriate to provide safe or healthful

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

§ 652(8). This all-encompassing definition enables the

Secretary to impose whatever standards he deems

“reasonably necessary or appropriate,” thereby

delegating to the Executive Branch unchecked

authority to enact workplace safety laws. If this

standardless delegation of lawmaking powers

survives scrutiny, Article I’s vesting of “[a]ll

legislative Powers” in Congress and Congress alone

will be rendered a nullity.

NCLA writes separately to explain that the

modern nondelegation doctrine rests on several

fundamental errors. In practice, it permits virtually

unlimited delegation of legislative powers, which

undermines self-governance and destroys the

distinctive constitutional role of each of the three

branches. NCLA urges this Court to restore a

nondelegation doctrine that is faithful to the

Constitution’s text and purpose.

3

SUMMARY OF ARGUMENT

“Article I, § 1 of the Constitution vests all

legislative powers herein granted … in a Congress of

the United States. This text permits no delegation of

those powers.” Whitman v. Am. Trucking Ass’ns, 531

U.S. 457, 472 (2001) (cleaned up). Accordingly,

“Congress … may not transfer to another branch

‘powers which are strictly and exclusively legislative.’”

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

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

42–43 (1825)). However, the “test [that courts] have

applied to distinguish legislative from executive

power largely abdicates [their] duty to enforce that

prohibition.” Dep’t of Transp. v. Ass’n of Am. RR, 575

U.S. 43, 77 (2015) (Thomas, J., concurring in the

judgment).

The treatment of the OSH Act by the decision

below lays bare this abdication. The Act authorizes

the Secretary to “by rule promulgate, modify, or

revoke any occupational safety … standard” he deems

“reasonably necessary or appropriate to provide safe

or healthful employment and places of employment.”

29 U.S.C. §§ 652(8), 655(b). The Sixth Circuit’s

conclusion that this obvious transfer of lawmaking

power to an executive agency passes muster under the

nondelegation doctrine does not demonstrate that the

OSH Act is constitutional, but rather that the doctrine

does not faithfully implement Article I, § 1.

In recent years, a majority of justices have

expressed skepticism at the modern nondelegation

doctrine’s fidelity to Article I’s Vesting Clause. See

Gundy, 139 S. Ct. at 2130-31 (Alito, J., concurring in

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

4

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

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

J., respecting the denial of certiorari). This petition

presents an ideal opportunity to realign the doctrine

to the Constitution’s text and purpose. The OSH Act’s

grant of power to enact whatever safety standards the

Secretary

deems

“reasonably

necessary

or

appropriate” for virtually all workplaces in the

country is the most open-ended transfer of lawmaking

authority in the federal code. See Cass R. Sunstein, Is

OSHA Unconstitutional?, 94 VA. L. REV. 1407, 1448

(2008) (“No other federal regulatory statute confers so

much discretion on federal administrators, at least in

any area with such broad scope[.]”). If the

nondelegation doctrine is to have any meaning, this

transfer of unfettered legislative power must be

stopped. The Court should grant review.

ARGUMENT

I.

CONGRESS MAY NOT DIVEST POWER THAT

THE CONSTITUTION VESTS IN IT

The Constitution grants Congress—and Congress

alone—the power to legislate, i.e., make binding rules

that limit the liberty that citizens would otherwise

enjoy. U.S. CONST. art. I, § 1. The location of this

power in Congress is essential to a fundamental

principle of self-government: citizens must consent,

through their elected representatives, to all legal

limits on their liberty. But it is not only this

underlying principle that should guide this Court in

barring any relocation of legislative power. Both the

drafting debates and the Constitution’s text make

clear that legislative power cannot be shared or

otherwise transferred.

5

A.

The

Constitution

Forbids

Legislative Delegation

All

The delegation of power was to be done solely by

the people in the Constitution, not by Congress. So, it

is difficult to understand how Congress—for example,

in § 652(8)—could delegate binding lawmaking power

to executive agencies. This point rests not merely on

underlying principles but on the text.

The Constitution says each of its tripartite powers

“shall be vested” in its own branch of government.

U.S. CONST. art. I, § 1, art. II, § 1, art. III, § 1. If it had

used the word “vested” as one might in grant of

property, saying merely that the legislative powers

are hereby vested in Congress, then there arguably

could be a transfer of powers between branches. But

in declaring that its powers “shall be vested,” the

Constitution not only vests legislative, executive, and

judicial power in respective branches, but says where

such powers “shall,” and thus must, be located.

This separation-of-powers requirement was made

clear in the earliest surviving academic lectures on

the Constitution, which were given in 1791 by the

Virginian Judge St. George Tucker at the College of

William and Mary. He explained that “all the powers

granted by the Constitution are either legislative,

executive, or judicial; and to keep them forever

separate and distinct, except in the Cases positively

enumerated, has been uniformly the policy, and

constitutes one of the fundamental principles of the

American Government.” St. George Tucker, Law

Lectures, p. 4 of four loose pages inserted in volume 2,

Tucker-Coleman Papers, Mss. 39.1 T79, Box 62,

6

Special Collections Research Center, Earl Gregg

Swem Library, College of William and Mary.

When the Constitution says the

legislative powers shall be vested in

Congress, it requires them to be there,

not elsewhere. That is, when legislative

powers are shared with the executive,

they are no longer vested merely in

Congress, and the sharing thus violates

the Constitution’s injunction that

they shall be vested in Congress. The

Constitution does not say that the

legislative powers, including the power

to regulate commerce, ‘shall be vested in

a Congress of the United States and such

other bodies as Congress specifies.’

Philip Hamburger, Nondelegation Blues, 91 GEO.

WASH. L. REV. 1083, 1174 (2023) (footnote omitted;

emphasis in original).

The phrase “shall be vested” thus reinforces what

already should be clear, that “the Constitution’s

vesting of powers is not just an initial distribution—

like an initial dealing out of cards.” Id. Rather than

merely vest all legislative powers in Congress, the

Constitution further mandates that all such powers

may not be delegated to another branch. Am.

Trucking, 531 U.S. at 472 (confirming that the

Constitution’s “text permits no delegation of

[legislative] powers”); J.W. Hampton, Jr. & Co. v.

United States, 276 U.S. 394, 406 (1928) (“[I]n carrying

out that constitutional division into three branches it

is a breach of the national fundamental law if

7

Congress gives up its legislative power and transfers

it to the President[.]”).

B.

Transferring Legislative Powers

Undermines Self-Government

The Constitution’s prohibition against delegating

legislative power is not only necessary to protect one

branch of government from intrusion by another, but

“[t]he structural principles secured by the separation

of powers protect the individual as well.” Ass’n of Am.

RR, 575 U.S. at 43 (quoting Bond v. United States, 564

U.S. 211, 222 (2011)). That is because legislative

delegation collides with the Constitution’s most

important principle: consent of the people. Without

consent, a government would be illegitimate, and its

laws would be without obligation.

Consent of the people was essential not only for the

adoption of the Constitution but also for the

enactment of statutes. Such consent must come

through the election of representatives to the

legislature—the body vested with legislative power.

As American colonists declared: “the first Principle in

Civil Society, founded in Nature and Reason, that no

Law of the Society can be binding on any Individual[],

without his Consent, given by himself in Person, or by

his Representative of his own free Election[.]”

Resolutions of the Boston Town Meeting (Sept. 13,

1768), in A Report of the Record Commissioners of the

City of Boston, Containing the Boston Town Records,

1758 to 1769, at 261 (Boston: Rockwell & Churchill,

1886).

The displacement of legislative power to

administrative agencies, not least in § 652(8),

threatens this self-governance. It deprives Americans

8

of their freedom to rule themselves through their

elected representatives. Judge Thapar recently

explained that the Framers designed “Congress [to be]

the [branch] most responsive to the will of the people

… for a reason: Congress wields the formidable power

of ‘prescrib[ing] the rules by which the duties and

rights of every citizen are to be regulated.’ If

legislators misused this power, the people could

respond, and respond swiftly.” Tiger Lily, LLC v.

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

concurring) (quoting THE FEDERALIST No. 78, at 465

(Alexander Hamilton) (Clinton Rossiter ed., 1961)).

The transfer of legislative powers to a less

accountable branch necessarily undermines consent.

To be sure, the dislocation of legislative power does

not deny anyone’s right to cast a ballot. But shifting

legislative power out of the legislature and into

agencies diminishes the value of suffrage. The form

remains, but the reality is to debase the currency of

voting. And if violations of voting rights are worrisome

even at a retail level, there should be at least as much

concern about wholesale assault presented by

transferring lawmaking power from elected

representatives to unelected bureaucrats.

The transfer of legislative powers to agencies also

weakens accountability by allowing an evasion of

bicameralism and presentment. Bicameralism makes

lawmaking difficult by design—to limit corruption

and unjust passions and encourage prudence. THE

FEDERALIST No. 62, at 420–21 (J. Madison) (Jacob E.

Cooke ed., 1961); THE FEDERALIST No. 63, at 426–28

(J. Madison) (Jacob E. Cooke ed., 1961). Presentment

ensures that laws are subject to the possibility of a

veto. Together, the requirements ensure that

9

lawmaking responsibilities reside in the two elected

legislative bodies and in an elected president—all of

whom are personally accountable to the people.

However, “Congress has an incentive to insulate

itself from the consequences of hard choices” by

“transfer[ring] … hard choices from Congress to the

executive branch.” Tiger Lily, 5 F.4th at 674 (Thapar,

J., concurring). In American Petroleum Institute,

Justice Rehnquist explained that “[i]t is difficult to

imagine a more obvious example [than the OSH Act]

of Congress simply avoiding a choice which was both

fundamental for purposes of the statute and yet

politically so divisive that the necessary decision or

compromise was difficult, if not impossible, to

hammer out in the legislative forge.” 448 U.S. at 687

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

Workplace safety laws require hard choices that

“balanc[e] statistical lives and industrial resources.”

Id. at 685. Instead of making these “important choices

of social policy”—and thus risk being held accountable

by voters—Congress evaded the Constitution’s

democratic bicameralism-and-presentment process

and “improperly delegated th[ose] choice[s] to the

Secretary of Labor[.]” Id. at 672, 685.

When Congress transfers its legislative power to

an administrative agency, “the people lose control

over the laws that govern them. … [T]he public loses

the right to have both its elected representatives and

its elected president take personal responsibility for

the law.” David Schoenbrod, Power Without

Responsibility 99–105 (Yale U. Press 1993). Indeed,

“the citizen … can perhaps be excused for thinking

that it is the agency really doing the legislating.” City

10

of Arlington v. FCC, 569 U.S. 290, 315 (2013) (Roberts,

C.J., dissenting).

“By shifting responsibility [to enact workplace

safety laws] to a less accountable branch, Congress

protects itself from political censure—and deprives

the people of the say the framers intended them to

have.” Tiger Lily, 5 F.4th at 674 (Thapar, J.,

concurring). Because this shift is the product of

collusion between Legislative and Executive

Branches, the people must rely on the Judicial Branch

to prevent unconstitutional delegation of legislative

power. The nondelegation doctrine in its current form

has proven inadequate to the task.

II.

THE MODERN NONDELEGATION DOCTRINE

ENABLES CONSTITUTIONAL VIOLATIONS

A person who says he will do one thing but in fact

does the opposite is dishonest. A legal doctrine is no

different. The nondelegation doctrine purports to bar

Congress from delegating legislative power. See Am.

Trucking, 531 U.S. at 472. In fact, it notoriously

permits the wholesale transfer of such power. See

Gundy, 139 S. Ct. at 2139–40 (Gorsuch, J.,

dissenting); Ass’n of Am. RR, 575 U.S. at 77 (Thomas,

J., concurring). By saying one thing and doing

another, the nondelegation doctrine amounts to

judicial doublespeak. It tells Americans that courts

are policing delegations of legislative power even

while promiscuously permitting them. The very

notion of nondelegation is also misleading in

suggesting that what limits congressional transfers of

legislative power is the malleable, court-created

intelligible-principle test, as opposed to a prohibition

based on the Constitution’s clear text.

11

A.

How It Started: The Nondelegation

Doctrine Developed to Enforce

Constitutional Boundaries

For over 150 years after the founding, this

Court faithfully acted to keep legislative power where

it belongs, i.e., where the Constitution vested it. See,

e.g., J.W. Hampton, Jr. & Co., 276 U.S. at 406 (“it is a

breach of the national fundamental law if Congress

gives up its legislative power and transfers it to the

President, or to the judicial branch”); Marshall Field

& Co. v. Clark, 143 U.S. 649, 692 (1892) (“That

[C]ongress cannot delegate legislative power to the

president is a principle universally recognized as vital

to the integrity and maintenance of the system of

government ordained by the constitution.”); see also

Wayman v. Southard, 23 U.S. 1, 20 (1825) (“It will not

be contended that Congress can delegate … powers

which are strictly and exclusively legislative.”).

As the administrative state took root in the

1930s and 40s, the Court took care to define what

Congress must do before it could delegate regulatory

authority. Specifically, it was not sufficient for

Congress to identify broad policy goals. Rather,

Congress also must set standards that would be

applied in accomplishing such goals, establish rules of

decision and conduct, and do so in a manner that

would allow courts and the public to determine

whether the acts of the executive were consistent with

the legislative intent expressed in a statute. See

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

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

U.S. 495 (1935); Opp Cotton Mills v. Adm’r of Wage

and Hour Div., 312 U.S. 126 (1941); Yakus v. United

States, 321 U.S. 414 (1944).

12

In Panama Refining, the Court held § 9(c) of the

National Industrial Recovery Act unconstitutional.

293 U.S. at 430–33. Section 9(c) authorized the

President to prohibit the transportation of “hot” oil,

but provided no standards for when he should do so.

After finding no standards for or constraints on this

specific power in § 9, the Court turned to the broader

statute. Id. at 414–16. The Act’s “declaration of policy”

identified at least twelve policy objectives such as “to

promote the fullest possible utilization of the present

productive capacity” and “to conserve natural

resources.” Id. at 416–17. The Court found that this

“general outline of policy” did nothing to establish a

standard for when the granted authority should be

used. Id. at 417. Rather, it left the President to

perform the legislative function of establishing the

standard for when to apply governmental power. Id.

The Court distinguished other cases where

delegations of authority had been permissible. Id. at

421–30. In those cases, Congress had established not

only policies, but specific standards or rules of

conduct, leaving the executive to develop

“subordinate” rules or to find facts needed to apply the

legislative rule. Id. at 421; see also id. at 422–26. In

such instances, the President “was the mere agent of

the law-making department to ascertain and declare

the event upon which [the legislature’s] expressed will

was to take effect.” Id. at 426.

Further, the Court rejected the idea that it had

previously approved something so vague as “public

convenience, interest, or necessity” as a sufficiently

limiting standard. Id. at 428. Ultimately, the Court

struck § 9(c) because “Congress has declared no policy,

has established no standard, has laid down no rule”

13

specifically as to the transportation of hot oil. Panama

Refining, 293 U.S. at 430; see also id. at 432 (Congress

must establish “rules of decision” to prevent “a pure

delegation of legislative power”).

Later the Court struck another part of the Act,

holding that Congress must “itself establish[] the

standards of legal obligation, thus performing its

essential legislative function.” Schechter Poultry, 295

U.S. at 530. “[F]ailure to enact such standards”

amounted to an “attempt[] to transfer [the legislative]

function to others.” Id. When the purpose of a statute

is not to establish law, but to authorize the executive

to make “new and controlling prohibitions through

codes of law[,]” and when any restrictions “leave

virtually untouched the field of policy envisaged[,]”

Congress has exceeded its bounds. Id. at 535, 538. A

statute that “does not undertake to prescribe rules of

conduct,” but instead “authorizes the making of codes

to prescribe [rules of conduct,]” is “an unconstitutional

delegation of legislative power.” Id. at 541–42; see also

Opp Cotton Mills, 312 U.S. at 145 (“The essentials of

the legislative function are the determination of the

legislative policy and its formulation as a rule of

conduct.”); id. at 144 (where a statute sets up

standards for the guidance of the administrative

agency “such that Congress, the courts[,] and the

public can ascertain whether the agency has

conformed to the standards which Congress has

prescribed, there is no failure of performance of the

legislative function”).

The Court once properly applied standards for

legislation requiring Congress to do more than make

grand statements of policy. Those days have passed.

14

B.

How It’s Going: The Nondelegation

Doctrine Now Endorses Divesting

Legislative Power

Today, the standard that purports to confine

legislative power to Congress is impotent. The

nondelegation doctrine is viewed as moribund and in

practice is wholly ineffective.

The Court had previously stated that,

“[e]xtraordinary conditions do not create or enlarge

constitutional power[,]” and government actors “are

not at liberty to transcend the imposed limits because

they believe that more or different power is

necessary.” Schechter Poultry, 295 U.S. at 528–29. By

1946, however, the Court had a different view, stating

that “[n]ecessity … fixes a point beyond which it is

unreasonable and impracticable [for] Congress to

prescribe

detailed rules;

it then becomes

constitutionally sufficient if Congress delineates the

general policy, the public agency which is to apply it,

and the boundaries of this delegated authority.” Am.

Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946).

While the Court feigned a nod to the demand

for congressionally established standards as well as

policy, it made the “standards” requirement

meaningless. The Court curtly stated that since it had

previously approved “public interest” and like

expressions as sufficiently definitive, it was now

compelled to sanction similar standards. Id. A review

of the cases it cited, however, demonstrates that the

Court had not, in fact, approved such vague and broad

standards, standing alone, to complete the task of

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

287 U.S. 12, 25 (1932) (interpreting “public interest”

15

criterion more precisely in proper statutory context to

mean “adequacy of transportation service, to its

essential conditions of economy and efficiency, and to

appropriate provision and best use of transportation

facilities”); Yakus, 321 U.S. at 421 (upholding agency’s

authority to “stabilize prices, wages and salaries ‘so

far as practicable’ on the basis of the levels which

existed on Sept. 15, 1942”).

By 1989, the Court admitted its retreat from

enforcing the constitutional demand that “all”

legislative power be vested in Congress. In Mistretta

v. United States, 488 U.S. 361 (1989), the Court

remarked that “Congress generally cannot delegate its

legislative power.” 488 U.S. at 372 (emphasis added).

The Court acknowledged that its “jurisprudence has

been driven by a practical understanding that …

Congress simply cannot do its job absent an ability to

delegate power under broad general directives.” Id.

This reasoning confirmed that since 1946, so long as

Congress provided “general directives” through an

“intelligible principle,” Congress was free of further

demands.

The true nondelegation doctrine has collapsed,

and congressional delegation of legislative power has

become the rule. A panel on the Tenth Circuit noted

that the nondelegation doctrine has been long

dormant, to the point of being deemed a “dead letter”

never properly interred. United States v. Rickett, 535

F. App’x 668, 674–75 (10th Cir. 2013) (citing

Mistretta, 488 U.S. at 373); see also Am. Trucking, 531

U.S. at 474; Gary Lawson, Delegation and Original

Meaning, 88 VA. L. REV. 327, 329 (2002). The panel

continued, “if there is anything clear or obvious about

the nondelegation doctrine, it is that, viewed through

16

its lens, virtually any statute will be deemed valid.”

Rickett, 535 F. App’x at 675 (citing Am. Trucking, 531

U.S. at 474–75; Mistretta, 488 U.S. at 373 n.7).

While other courts may not yet state that the

nondelegation doctrine is defunct, they view it as

“lax,” “lenient,” or a low threshold, unworthy of

meaningful analysis. The First Circuit, for example,

held that discretion constrained to “the public

interest” and “substantial justice” “indisputably

satisfies the lax ‘intelligible principle’ standard under

our precedents and those of the Supreme Court.”

United States v. Diggins, 36 F.4th 302, 319 n.19 (1st

Cir. 2022) (citing United States v. Parks, 698 F.3d 1,

7–8 (1st Cir. 2012)); see, e.g., CFPB v. Law Offs. of

Crystal Moroney, P.C., 63 F.4th 174, 184 (2d Cir. 2023)

(referring to “the nondelegation doctrine’s lenient

standard”) (cert. pet. filed June 21, 2023); United

States v. Cooper, 750 F.3d 263, 272 (3d Cir. 2014)

(“under

controlling

nondelegation

doctrine

jurisprudence, the hurdle for the government … is not

high”); Granados v. Garland, 17 F.4th 475, 480 (4th

Cir. 2021) (“intelligible principle is not an exacting

standard”); Bhatti v. Fed. Hous. Fin. Agency, 15 F.4th

848, 854 (8th Cir. 2021) (since the Supreme Court

found that “in the ‘public interest, convenience, or

necessity’” was a sufficient intelligible principle, there

is a “low threshold for validation under the

nondelegation doctrine”); Consumers’ Research v.

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

(Newsom, J., concurring in judgment) (“Their

challenge fails, as I see it, only because non-delegation

doctrine has become a punchline.”).

17

Effectively, the “nondelegation doctrine” has

become a “pro-delegation doctrine.” See Hamburger,

supra p. 6, at 1086.

III.

FALSITY, FICTION, AND OTHER FAULTS

RIDDLE THE NONDELEGATION DOCTRINE

The nondelegation doctrine has become either

a misnomer or doublespeak, and it rests on fictions

that can neither be honestly maintained nor justified.

Hamburger, supra p. 6, at 1091–95.

A.

‘Delegation’ Falsely Implies an Easily

Revocable Transfer

When statutes improperly divest legislative

power, they do not merely “delegate” it. When a

political officer “delegates” power, she retains the

authority to unilaterally revoke the delegation. So, a

Secretary of Labor who “delegates” statutorily

authorized powers to a subordinate may terminate

that arrangement at any time, for any reason.

That is not the case when a statute has

conferred lawmaking powers. A statutory divesting of

power ties the hands of Congress until another statute

can be passed. Congress may revoke the “delegation”

only via the cumbersome bicameralism and

presentment process of Article I, § 7. The President is

empowered to veto any effort to withdraw powers that

a statute vests, so Congress cannot unilaterally

revoke a divesting of authority that a predecessor

Congress made via statute. Congress must obtain the

President’s assent, or else it must secure veto-proof

supermajorities in both houses of Congress—an

exceedingly difficult task.

It is therefore highly misleading to discuss

divesting of legislative power in terms of “delegation.”

18

B.

The Nondelegation Doctrine Rests

on Fictions

The nondelegation doctrine rests on further

fictitious assumptions.

One such fiction is that agency lawmaking is

merely “specifying” or “filling in the details” of a

statutory standard. See, e.g., United States v.

Grimaud, 220 U.S. 506, 517 (1911) (“[W]hen Congress

had legislated and indicated its will, it could give to

those who were to act under such general provisions

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

administrative rules and regulations”).

But even where authorizing statutes offer

governing standards, the authorized agencies often

are not merely filling in details. As is widely

understood, such statutes frequently leave the most

difficult legislative questions to the agencies—indeed,

members of Congress notoriously use such statutes to

avoid making difficult legislative decisions. See

Gundy, 139 S. Ct. at 2144 (Gorsuch, J., dissenting)

(“Because Congress could not achieve the consensus

necessary to resolve the hard problems …, it passed

the potato” to an agency “freed from the need to

assemble

a

broad

supermajority[.]”);

David

Schoenbrod,

Consent

of

the

Governed:

A

Constitutional Norm that the Court Should

Substantially Enforce, 43 HARV. J. L. & PUB. POL’Y

213, 219 (2020).

A second fiction is that an “intelligible

principle” provided by Congress ensures that it is

delegating something less than legislative power. As

summarized above and as Justice Gorsuch has

accurately recounted, courts have gradually relaxed

19

the “intelligible principle” standard so that it no

longer prevents Congress’s divestment of legislative

powers. See Gundy, 139 S. Ct. at 2140 (the Court’s

“intelligible principle” remark “has been abused to

permit delegations of legislative power that on any

other conceivable account should be held

unconstitutional. … Even Justice Douglas, one of the

fathers of the administrative state, came to criticize

excessive congressional delegations in the period

when the intelligible principle ‘test’ began to take

hold”) (Gorsuch, J., dissenting) (citations omitted).

Every act of Congress is ostensibly constrained

by the Constitution’s enumerated powers, and there is

almost always some semblance of an “intelligible

principle” that may be found in an agency’s enabling

statutes. But that does not demote an agency’s libertyimpinging laws to something less than an exercise of

legislative power.

Hence, an “intelligible principle” does not save

agency rulemaking from being legislative. Current

doctrine is sheer fiction in suggesting otherwise.

C.

Today’s Nondelegation

Interferes with Article III

Doctrine

Another fault with the current nondelegation

doctrine is that courts cannot perform their

constitutional duty if Congress can delegate

lawmaking after providing no more than an openended policy suggestion. See Mark Chenoweth &

Richard Samp, “Reinvigorating Nondelegation with

Core Legislative Power,” in The Administrative State

Before the Supreme Court: Perspectives on the

Nondelegation Doctrine 81, 93–95 (Peter J. Wallison

& John Yoo eds., 2022). Legislation must be

20

“sufficiently definite and precise” so as to permit

courts (and the public) “to ascertain whether the will

of Congress has been obeyed.” Yakus, 321 U.S. at 425–

26; Opp Cotton Mills, 312 U.S. at 144 (where a statute

sets up standards “such that Congress, the courts[,]

and the public can ascertain whether the agency has

conformed to the standards …, there is no failure of

performance of the legislative function”). In order to

accomplish this task, a statute must “mark[] the field

within which the [agency] is to act so that it may be

known whether [it] has kept within it in compliance

with the legislative will.” Yakus, 321 U.S. at 425.

Importantly, to “mark the field within which

the [agency] is to act,” is not accomplished by merely

establishing the outer limits of an agency’s

jurisdiction and setting aspirational goals. For

example, Yakus examined an emergency wartime

price control act. Id. at 420. The Court noted that § 1

declared its purposes or policy objectives, while § 2

and an amending statute provided the standards to be

used in fixing maximum prices. Id. at 420–21. In the

standards, Congress required reference to prices

prevailing on specific dates with further standards for

when deviations may be appropriate. The executive

was required to “conform to standards.” Id. at 423. It

was the standards, not the policy, that “define[d] the

boundaries within which prices having [the purpose of

furthering the policy] must be fixed.” Id. The Act was

a sufficient exercise of legislative power because it

“stated the legislative objective, … prescribed the

method of achieving that objective … and laid down

standards to guide the administrative determination”

of when to exercise price-fixing power and the prices

that could be set. Id. The Court reiterated that the

21

essential of the legislative function was not only the

determination of policy, but its “formulation and

promulgation as a defined and binding rule of

conduct.” Id. at 424.

Virtue-signaling aspirational policy goals are

not standards. See Panama Refining, 293 U.S. at 418–

20; Chenoweth & Samp, supra p. 19-20, at 91. In the

absence of discernible, enforceable standards that

create rules of conduct for delegated authority,

Congress has not completed the task of legislating.

Likewise, in the absence of identifiable standards,

courts have done no more than improperly defer to

administrative agencies’ opinion that their action

advances statutory policy goals. Schecter Poultry, 295

U.S. at 538; Chenoweth & Samp, supra p. 19, at 106.

In doing so, the court is not completing its task of

independently determining and applying the law.

***

The nondelegation doctrine has expired. It no

longer protects the principles enshrined in our

Constitution. The Court can begin to resuscitate those

protections by granting certiorari.

IV.

THIS CASE PRESENTS AN IDEAL VEHICLE

TO RESTORE THE VESTING CLAUSE

This case provides an ideal vehicle for this

Court to revisit and clarify the nondelegation doctrine

because the statute at issue here so clearly divests

legislative power that Article I, § 1 of the Constitution

vests in Congress and Congress alone.

If the nondelegation doctrine exists, the Court

must find unconstitutional a statute that simply

“instructs the agency: Do what you believe is best. Act

reasonably and appropriately. Adopt the legal

22

standard that you prefer, all things considered.”

Sunstein, supra p. 4, at 1407. Yet, as Professor

Sunstein explained, “the core provision of … the

Occupational Safety and Health Act … is not easy to

distinguish from the hypothesized statute.” Id.

This Court considered the constitutionality of

the OSH Act in 1980, in the context of the grant of

authority to promulgate workplace health standards,

which is narrower than the act’s grant of authority to

issue safety standards in this case. Am. Petroleum

Institute, 448 U.S. at 607. Then-Justice Rehnquist

found that delegation was unconstitutional. Id. at 685

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

“Congress was faced with a clear, if difficult, choice

between balancing statistical lives and industrial

resources.” Id. But instead of making that tradeoff,

“Congress chose, intentionally or unintentionally, to

pass this difficult choice on to the Secretary.” Id. In

doing so, it violated the Vesting Clause requirement

“that legislatures are to make laws, not [other]

legislators.” Id. at 686.

The plurality found the OSH Act’s grant of

authority to promulgate health standards to be

unlawful on narrower grounds: the government must

determine that a toxic substance poses a “significant”

workplace health risk before regulating it. Id. at 646.

Otherwise, “the statute would make such a ‘sweeping

delegation of legislative power’ that it might be

unconstitutional under the Court’s reasoning.” Id.

(quoting Schechter Poultry, 295 U.S. at 539). That

‘significant risk” limitation, which the plurality said

was needed to prevent a violation of the nondelegation

doctrine in the health standard-issuing context, is

missing from the OSH Act’s grant of authority to issue

23

safety standards too. See Int’l Union v. OSHA, 938

F.2d 1310, 1321 (D.C. Cir. 1991).

Rather, the only guidance is that the Secretary

must enact a “reasonably necessary or appropriate”

rule, which is no standard at all. Id. When addressing

the phrase “appropriate and necessary” in the Clean

Air Act, the Supreme Court explained that “[o]ne does

not need to open up a dictionary in order to realize the

capaciousness of this phrase.” Michigan v. EPA, 576

U.S. 743, 752 (2015). Section 652(8)’s “reasonably

necessary or appropriate” language is even more

capacious because it is framed in the disjunctive. The

OSH Act thus tells the Secretary to do whatever she

believes is appropriate.

The majority below’s attempt to avoid this

conclusion by inventing limitations on the Secretary’s

authority is heroic, albeit meritless. It misreads

§ 655(b)’s statement that the Secretary “may”

promulgate any safety standard as a limit on her

discretion, asserting “this ‘may’ … means ‘must’ or

‘shall.’” Pet.App.14a. In doing so, the panel turns

upside down “[t]he traditional, commonly repeated

rule … that shall is mandatory and may is

permissive.” Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 112

(2012). The majority cites no precedent to support its

idiosyncratic construction of “may” to mean “shall.”

The panel next asserts that “‘reasonably

necessary or appropriate’ … means that the standards

adopted should be needed to improve safety but not to

the exclusion of all else.” Pet.App.16a. That might be

so if the statute required safety standards to be

necessary and appropriate. But the “or” disjunctive

24

allows the Secretary to enact any standard she

believes is “appropriate” even if it is not “reasonably

necessary.” Scalia & Garner, supra p. 23, at 116. That

standard is entirely subjective and is impervious to

being tested by courts to determine whether the

Secretary has followed Congress’s command.

In short, the majority could avoid the

conclusion that the OSH Act lacks any ascertainable

limits on the Secretary’s authority to enact workplace

safety mandates only by rewriting the statute,

effectively replacing “may” with “shall” and “or” with

“and.” Pet.App.14a-16a. That sort of statutory

rewriting is beyond the scope of proper judicial

construction. If a statute of this sort can pass

constitutional muster, Article I’s Vesting Clause is a

nullity.

CONCLUSION

The Court should grant the Petition and take

this opportunity to establish workable boundaries

that enable the lower courts to identify and enforce

the constitutional limitation on divesting legislative

power found in Article I’s Vesting Clause.

25

Respectfully submitted,

Sheng Li

Counsel of Record

Andrew J. Morris

Mark Chenoweth

NEW CIVIL LIBERTIES ALLIANCE

1225 19th Street, NW, Suite 450

Washington, DC 20036

(202) 869-5210

Sheng.Li@ncla.legal

Counsel for Amicus Curiae

New Civil Liberties Alliance

February 29, 2024