Despite opposition from two conservative justices, the Supreme Court on Tuesday dismissed a lawsuit that could have dealt a major defeat to the Occupational Safety and Health Administration (OSHA).
An Ohio contractor backed by Republican-led states and anti-regulatory interests argued before Congress unconstitutionally delegated its legislative powers the executive branch when it granted such broad powers to the agency that sets and enforces workplace standards.
In a brief order, the court denied the contractor’s appeal after a lower court rejected the challenge. Conservative justices Clarence Thomas and Neil Gorsuch publicly indicated they would have taken the case, but that at least four votes would be needed.
Gorsuch made no statement, but Thomasand argued that the OSHA lawsuit provided an “excellent vehicle” to address this grave constitutional problem.
“The question of whether the Occupational Safety and Health Administration’s broad powers are consistent with our constitutional structure is undeniably important,” Thomas wrote.
He noted that other conservatives on the Supreme Court – Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh – have also expressed interest over the years in “rethinking this Court’s approach” to the delegation of powers by Congress to federal agencies.
Thomas claimed the labor agency’s power extends to “virtually every business in the United States,” citing a years-old dissent from Kavanaugh in which he said the agency claims its authority over everything from the design of a lawn mower to the level of contact permitted between trainers and whales at SeaWorld.
“The Occupational Safety and Health Act is perhaps the most comprehensive transfer of power to an administrative agency found in the United States Code,” Thomas wrote. “If this broad authorization does not improperly give an agency legislative powers, it is difficult to imagine what would happen.”
He further argued that it would be “no less reprehensible” if Congress allowed the IRS to tax anyone it deemed “appropriate.”
The lawsuit against OSHA was filed by Allstates Refractory LLC, a tiny Ohio general contractor that provides furnace services to the glass, metals and petrochemical industries, and was supported by 23 Republican state attorneys general and a number of libertarian legal groups.
They wanted to utilize the case to launch another attempt to reduce the size of the “administrative state” after the Supreme Court won a decisive victory for conservative and anti-regulatory interests in recent years.
The contractor was represented before the Supreme Court by Don McGahn, who served as White House counsel to former President Trump.
The Supreme Court’s decision Tuesday to dismiss the appeal comes days after it invalidated the Securities and Exchange Commission’s decision. internal enforcement system was used to seek civil penalties for fraud. Although the case presented a similar issue to the OSHA petition, the court decided the case on different grounds.
And last week, the Court took a sledgehammer approach to the power of the executive branch by Repeal of Chevron consenta now-defunct legal doctrine that instructed judges to defer to authorities in cases where the law was ambiguous.
Earlier in the legislative session, however, the court protected the Consumer Financial Protection Bureau by upholding its funding mechanism.
