OSHA Overreach: The Nondelegation Doctrine and the Strain on Small Businesses

University of the Pacific Law Review Volume 56 Issue 1 Article 25 12-1-2024 OSHA Overreach: The Nondelegation Doctrine and the Strain on Small Businesses Zachary Byrne University of the Pacific, McGeorge School of Law Follow this and additional works at: https://scholarlycommons.pacific.edu/uoplawreview Part of the Law Commons Recommended Citation Zachary Byrne, OSHA Overreach: The Nondelegation Doctrine and the Strain on Small Businesses, 56 U. PAC. L. REV. 77 (2024). Available at: https://scholarlycommons.pacific.edu/uoplawreview/vol56/iss1/25 This Comments is brought to you for free and open access by the Journals and Law Reviews at Scholarly Commons. It has been accepted for inclusion in University of the Pacific Law Review by an authorized editor of Scholarly Commons. For more information, please contact . OSHA Overreach: The Nondelegation Doctrine and the Strain on Small Businesses Zachary Byrne Volume 56 December 2024 Issue 1 OSHA Overreach: The Nondelegation Doctrine and the Strain on Small Businesses Zachary Byrne* TABLE OF CONTENTS I. INTRODUCTION ................................................................................................. 78 II. LEGAL BACKGROUND ...................................................................................... 80 A. History of the Nondelegation Doctrine ....................................................... 80 B. OSHA’s Establishment of Permanent Safety Standards............................... 82 C. Allstates and the Latest Challenge of OSHA’s Permanent Standards Provision .......................................................................................................... 84 D. “Super Stare Decisis” ................................................................................. 86 E. Similarities to the Major Questions Doctrine.............................................. 88 III. STRENGTHENING THE NONDELEGATION DOCTRINE AND LIMITING OSHA’S IMPACT ON SMALL BUSINESSES ........................................................................... 88 A. The OSHA Act Fails the Intelligible Principle Test ..................................... 89 B. The Importance of the Nondelegation Doctrine to Small Businesses ......... 93 C. The Influence of “Super Stare Decisis” on the Nondelegation Doctrine.... 95 D. Developing a New Intelligible Principle Test and Strengthening the Nondelegation Doctrine ................................................................................... 97 IV. CONCLUSION ................................................................................................ 101 * J.D. Candidate, University of the Pacific, McGeorge School of Law, to be conferred May 2025; B.S., Criminology, University of Idaho, 2022. First of all, I would like to thank Professor Francis J. Mootz, III for his time and effort as faculty advisor to this Comment. Additionally, I would like to thank the Law Review staff and Board of Editors who have helped me throughout the entire process of writing and editing this Comment. Finally, I would like to thank my friends and family, especially Rachel Bolt, for their continuous support and encouragement during my law school journey. 77 2024 / OSHA Overreach I. INTRODUCTION Allstates Refractory Contractors, LLC is a general contractor based in Toledo, Ohio, that employs four full-time employees and provides services in the “glass, metals, and petrochemical industries.”1 Safety is essential to Allstates’ operations as they have not experienced an Occupational Safety and Health Administration (OSHA) violation over the past 200,000 hours worked by its employees.2 In addition to following its own sufficient safety standards, Allstates is required to comply with OSHA’s uniform standards.3 These standards are not specialized to Allstates and forces Allstates to take on additional burdens and expenses related to training and compliance.4 Many small businesses like Allstates are facing this problem: creating its own specific safety standards only to find they are not sufficient under federal government-derived standards.5 Congress enacted the Occupational Safety and Health Act (OSH Act) permitting the Secretary of Labor to establish or revoke “any occupational safety or health standard.”6 Since then, OSHA has enacted permanent standards for workplaces across the country.7 Congress was able to shift this power to the agency through a delegation.8 Although Article I of the Constitution requires legislative powers to remain within the legislative branch, Congress can provide an intelligible principle to guide an agency in filling the gaps.9 With delegation comes delegation anxiety arising from Congress transferring too much power to the executive branch.10 To fight delegation anxiety, the Supreme Court created the nondelegation doctrine.11 The nondelegation doctrine prevents Congress from avoiding accountability from the public and transferring too much power to the executive 1 Memorandum from Allstates Refractory Contractors, LLC to The N. D. of Ohio. 7–8 (Dec. 3, 2021) (on file with the University of the Pacific Law Review) (providing details of Allstates Refractory Contractors, LLC). 2 Id. at 8. 3 Id. 4 Id. (stating that Allstates spends “thousands on both training its employees to comply with OSHA standards as well as adhering to those rules”). 5 Id. (“For example, Allstates believes that OSHA’s standards governing fall protection and confined spaces are unsafe in high-heat-environments because they do not allow workers to move quickly enough to avoid injury from heat exposure.”). 6 Occupational Safety and Health Act, 29 U.S.C. §§ 651–75, 677–78 (1970). 7 29 U.S.C. §§ 651–75, 677–78. 8 Wayman v. Southard, 23 U.S. 1, 42–43 (1825) (“It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”). 9 J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928) (stating that Congress must lay down an intelligible principle for the actor to follow); Wayman, 23 U.S. at 42–43 (“It will not be contended that Congress can delegate to the Courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully exercise itself.”). 10 Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 472 (2001) (stating that the vesting clause “permits no delegation of those powers”). 11 J.W. Hampton, Jr., & Co., 276 U.S. at 409 (stating that Congress must lay down an intelligible principle for the actor to follow). 78 University of the Pacific Law Review / Vol. 56 branch.12 Courts apply the intelligible principle test to determine if a delegation violates Article I of the Constitution.13 The test requires that Congress “clearly delineates the general policy, the public agency w (...truncated)